BLAKE
C.J.
The
complaint contains two causes of action, and alleges that the
plaintiff performed work and labor for the defendant between
October 26, 1888, and April 10, 1891, at the special instance
and request of defendant, for the sum of $30 per month, which
was the price agreed upon by the parties October 26, 1888
"so long as plaintiff should continue in defendant's
employ:" that "defendant has never been discharged
from such services;" that "defendant has paid
thereon the sum of $171 for the first five months and
twenty-one days, and no more; and that all of said wages due
earned and owing to this plaintiff from the 17th day of
April, 1889, to the 11th day of April, 1891, constantly and
without any loss of time, amounting to the sum of $714, is
now due and wholly unpaid to this plaintiff." The second
cause of action is founded upon an instrument in writing, a
due-bill, which is set forth, and it is alleged that the
defendant is indebted to the plaintiff in the further sum of
$266 by reason thereof. The answer denies specifically the
averments of the complaint regarding the first cause of
action, and says that the due-bill has been paid. The jury
returned the following verdict: "We, the jury, find for
the plaintiff in the sum of $714 on the first count, and in
the sum of eleven 86-100 dollars on the second count."
Judgment was entered thereon, and the defendant moved for a
new trial upon the ground that the evidence is insufficient
to sustain the verdict. The motion was overruled, and the
defendant appealed.
The
evidence will be stated fully. The plaintiff testified
"I know the defendant, Mr. Goughnour. On April 20th
Myron Goughnour had some stock on the island, and Mr.
Goughnour hired me to go over on the island, and take care of
it. I was told that the stock belonged to Myron Goughnour. I
took care of it, and helped to brand the stock, and on the
25th of October, 1888, Mr. Goughnour settled up with me.
There was about fifty head of stock, and it was sold as soon
as possible, as Myron was going to move off the island, and
wanted to go away. The stock was sold in October, and Myron
moved off, and I moved where Myron was living. On the day of
our settlement I asked Mr. Goughnour if I could go over on
the island and work for him. He said, 'Yes, you may go
over there and take care of what is left there,' and he
would pay me $30 a month. I saw Mr. Goughnour frequently
after that, but had no conversation with him, except to pass
the time of day, only when I went to him for $10 or something
of the kind. I was to get $30 a month. I commenced work under
the new contract on the 26th of October, 1888, after I was
discharged, and have been down there continuously. Mr.
Goughnour told me that he was going to sell the island soon.
I worked for the defendant 29 1/2 months. It amounted to $700
and something. My services on the island were worth $30 a
month. Mr. Goughnour still owes me $980, of which $700 and
something is for wages." Upon cross-examination the
plaintiff testified: "Mr. Goughnour hired me to work on
the island, and I went over there and took care of about
fifty head of stock that Myron Goughnour had there. The first
time was in April, 1888, and I remained until the 25th of
October. I was getting thirty dollars a month, and was
looking after the stock Myron had there. After the stock was
sold, and we had a settlement, I was looking after the island
and the things left there,--some farming implements, rake,
plow, and other machinery. The things are there now. I had a
pony on the island. Mr. Goughnour hired me to go there on the
25th of October. I asked him if I could go and work for him
on the island. He said, 'Yes, you can go over there; but
I have not much for you to do. You can go over there and take
care of what is left there, and Myron Goughnour & Co. will
pay you for any extra work you do.' Mr. Goughnour said if
any one put up a shack over there to notify him at once. My
services were worth $30 a month. I was taking care of
everything that was left there, and I was boarding myself. It
was a lonesome place to be, and worth $30 or nothing. Mr.
Goughnour owes me since the 25th of October, 1888,--$700 and
something. I made a demand for it on January of this year. I
remained there from the 25th of October, 1888, to January,
1891, without demanding pay for my services. I bought some
hay from Mr. Goughnour, and he bought four or four and a half
tons of hay from me." He testified on redirect
examination: "I sold Mr. Goughnour $84 worth of
hay."
L. S.
Owen was called by the plaintiff, and testified: "In
January, 1890, I was in Mr. Goughnour's office, and he
was going to get some one to take care of the teams on the
island, and he told me that I could go and take care of them,
but that I would have to move in the house with the man. I
was not acquainted with Mr. Mattock at the time, and I asked
if I could not go in the old house down by the stable. Mr.
Goughnour said: 'Yes, that's all right and will
satisfy me all around.' I said it might not satisfy the
man living there, and he said it would have to satisfy him,
as he (Mr. Mattock) was working for him. (Mr. Goughnour,) the
same as I would be.
I think
Mr. Mattock has been living there ever since. I have seen him
three or four times on the island. He is still on the
island." Upon cross-examination the witness testified:
"I went and remained on the island, taking care of the
teams. Mr. Mattock was doing nothing particularly. This was
in the winter, and he was looking after the things that were
left there." The plaintiff then rested the case.
The
defendant testified: "I wish the jury to understand that
I had never any interest individually in this island or the
property there. In the spring of 1888 I took charge of the
affairs of Myron Goughnour, as trustee. The horses and cattle
were held distinct. I took possession of them, and had Mr.
Mattock to takecare of them. Myron was going to move away. He
was never in my employ after October 25, 1888. On the 26th of
October I perfected a sale of the cattle of Myron Goughnour & Co. Mattock came in, and we had a final settlement of the
whole affair that day, and the due-bill sued on includes my
individual account, and the whole business was settled up,
and Mattock went away. The next day he came to my office, and
asked me if he might return to the island and work for me. I
said simply this: 'I have no further use for you; nothing
for you to do particularly; but you can return to the island
and take care of what there is there.' As regards the
wages, I told him that I thought Goughnour & Co. would
probably pay him for what his time was worth. I never hired
Mr. Mattock in the spring of 1888. He did no work for me in
1888. *** There was nothing on the island, after the 25th of
October, 1888, belonging to me. I know Mr. Owen, who
testified in the case. I made no statement to him that Mr.
Mattock was in my employ." Upon cross-examination the
defendant testified: "I had no control over the things
that were on the island after the 25th of October. I do not
know that I was ever dismissed as trustee of Myron Goughnour & Co. No person was ever appointed to succeed me. I sent some
teams over there, and offered to sell the island, but simply
offered it for other parties. I had authority to sell for
somebody else. I took charge of the business of Myron
Goughnour & Co. in May, 1888. The island was a part of the
assets. I have no machinery over there. The property belonged
to Myron Goughnour & Co. I had no charge of the machinery. My
administration ceased when I settled up the affairs as
trustee, and I never had any more management of this business
after that. I sold all the property of the company that was
salable. I never saw the mowing-machine." The defendant
then rested.
The
plaintiff was recalled, and testified: "The firm of
Myron Goughnour & Co. was composed of Myron Goughnour, A. L.
Love, and Mr. Mund. Myron was superintendent. I went over on
the island the same day we had our settlement. In the
evening, after we settled our account, I asked him if I could
not move in the old house, on account of feeding hay, and he
said, 'Yes.' I went up and got my key and wagon
blankets, and was staying there under the same contract. The
only conversation had with Mr. Goughnour about work was with
Mr. Goughnour on October 25, 1888." Upon
cross-examination the plaintiff testified, "I had some
ponies on the island."
We have
recited all the evidence relating to the motion for a new
trial which appears in the transcript. When the record is
examined, it will be seen by the testimony of the plaintiff
that he was employed in October, 1888, to perform labor at a
stipulated sum per month; and the testimony of Owen, with
relation to the admission of Goughnour that Mattock was
working for him, (the defendant,) is contradicted. The
attention of the court below seems to have been restricted to
these issues in the consideration of the motion for a new
trial, and the verdict was not disturbed because there is a
substantial conflict in the evidence. But we are of the
opinion that the case at bar comes clearly within an
exception to this general rule. There is testimony of other
matters, which was not controverted by the plaintiff, after
he was recalled, and is relevant, and shows that the cause
stands upon an...
