Hartman v. Rogers

McKinstry, J. Appellant contends that there is absolutely no testimony in the statement for new trial tending to, show the value of plaintiff’s services. The statement contains no specification of a deficiency of the evidence to sustain the finding as to the value of the services. (Code Civ. Proc., sec. 659, subd. 3.)

There is a substantial conflict of the evidence bearing on other issues.

The defendant claimed that the plaintiff, although employed to work for him under a specific contract for a term, violated his contract during the term, and ousted defendant both from the real and personal property confided to plaintiff’s charge. The plaintiff claimed that having entered into the possession under the contract, by the terms whereof he was to deliver to Samuel Rogers one third of the product at the close of the cropping season, and was to receive reasonable compensation for his services, the defendant (after the plaintiff has performed labor thereunder in raising a crop, but before the expiration of the cropping season), denied the contract, expressly refused to recognize the plaintiff’s rights under it, and asserted that plaintiff was working, and had agreed to work, for one hundred dollars a year. That thereon the plaintiff demanded reasonable wages for his work, which the defendant refused to pay or promise to pay. The plaintiff then declared his intention to retain possession of the property, saying, “I won’t give it up to no man without my money; and I don’t work for Chinamen’s wages.”

The case shows that the plaintiff retained possession of the land and certain personal property, and that the land and personal property were subsequently recovered by the defendant in actions of ejectment and replevin. The present action is. for wages up to the alleged denial of the specific contract by defendant.

If the contract was as stated by the plaintiff, and one hundred dollars a year was grossly inadequate compen[645]sation, and the defendant denied plaintiff’s rights under the contract and attempted to rescind it, the plaintiff was at liberty to abandon it and sue for reasonable compensation for the work actually done previously. His right so to do attached when the contract was rescinded by the action of both the parties, and the fact that the plaintiff did not subsequently perform the conditions of a contract which both had agreed to ignore cannot affect his right to recover in this action. However illegal and ill advised his attempt to “jump ” the land, he had done work under an alleged express contract, which he was relieved from executing, according to its terms, by the conduct of the defendant. He sues, not for the profits which he might have made if the parties had stood by the terms of the original contract, but simply for the actual value of his labor. The plaintiff and defendant contradicted each other as witnesses. Whatever might be our opinion if the matter were submitted to us as an original question, there is here a “ substantial conflict,” and the established rule would require us to sustain the verdict.