Sargent v. Linden Mining Co.

Morrison, C. J.: The complaint in this case contains two counts, the first averring that on the 15th day of November, 1877, the defendant was indebted to plaintiff in the sum of $873.43, balance due on an account for work and labor done and services rendered by plaintiff to the defendant, at defendant’s special instance and request, in and about a certain mining claim, between the 6th day of June, 1876, and the 15th day of November, 1877; and the second being substantially the same, with the additional [205]averment that the work and labor done and services rendered were reasonably worth the sum of $873.43. The case was tried before a jury, and a verdict was rendered in favor of plaintiff for the amount claimed. The appeal is taken from the judgment, and order of the Court denying defendant’s motion for a new trial. Numerous errors are assigned on the appeal, only one of which will be noticed, and that is sufficient to call for a reversal of the judgment.

When the evidence was closed, and before the cause was submitted, the Court below, at the request of the plaintiff, gave the following instruction to the jury :

“ If the plaintiff went upon the defendant’s mine to work in June, 1876, with the understanding and consent with defendant that he should take what is called ‘ bed-rock ’ piay, and that the meaning of ‘ bed-rock ’ pay is that plaintiff should receive reasonable wages or pay from the mine itself, without looking to the company personally, and that plaintiff with this understanding and consent was compelled with the knowledge of defendant to sink a shaft and run drain drifts, which is dciulwork, and did run such drain drifts, tunnel, and sink shafts at considerable expense, then, if the defendant discharged plaintiff before he had taken out reasonable wages or pay without any good cause, it is liable to plaintiff for such reasonable wages, less the amount he has received from said mine prior to such discharge.”

It seems to us that the theory of the plaintiff’s case, suggested and presented by the foregoing instruction, is a substantial departure from the case made by the pleadings and the evidence. As already stated, the complaint contains two counts, both of which are in indebitatus assumpsit, and founded on a contract to pay plaintiff so much money for work and labor done and performed by him at defendant’s special instance and request, and the evidence offered by the plaintiff was introduced for the purpose of sustaining this theory.