O'Brien v. L. E. White Lumber Co.

[704]

RICHARDS, J.

The plaintiff brought this action against the defendant to recover the sum of $2,189 as the reasonable value of work and labor and compensation for the use of his automobile in the service of the defendant, which sum the complaint alleges is the balance due upon an open and current account between the plaintiff and defendant. The latter answered, denying any liability whatever. A trial had before a jury resulted in a verdict in favor of the plaintiff for $1,875, for which amount judgment was rendered. The defendant appeals, specifying various alleged errors of law and particularly that the verdict is unsupported by the evidence.

The facts giving rise to the dispute may be briefly summarized as follows: The plaintiff was an employee of the defendant, having sustained that relation to it for some thirty years. In the month of October, 1914, he was defendant’s superintendent, his duties as such relating to that part of defendant’s business carried on in and around Point Arena, and which consisted of lumbering, the manufacture and shipping of railroad ties, the conduct of a mercantile store, and a limited amount of simple farming, and received for his services a salary of two hundred dollars per month. On the 29th of that month the president of the company addressed to him a letter, the terms of which are as follows:

“Dear Frank:—

“As ties and everything have gone to the ‘bow-wows’ we will have to put you for the present on half time, beginning November 1, 1914. I dislike to do this but cannot help it. As soon as things brighten you will be given full time again. Please advise me if this is satisfactory. Wc have made cuts in salaries all over and are letting off some men.

“Cut Emery’s salary to $75.00; cut MeCallum to $75.00. If they are not satisfied we will get somebody else who will be because we cannot continue as things are.

“Very truly yours,

“F. C. Drew.”

Testifying to the receipt of this letter, O’Brien said: “I think I answered on receipt of it, probably the same day or the next day. I cannot remember the exact wording of my