Lattemore v. Baldwin

McKee, J. Appeal from a judgment and order denying a motion for a new trial in an action to recover $339. for wages, at the rate of one dollar per day, alleged to be [41]due and owing for services rendered for the defendant in taking charge of a tract of land and keeping a ditch on it in repair from the 21st of April, 1884, until the 1st of April, 1885.

The pleadings were verified. The answer of defendant specifically denied the allegations of the complaint. Upon trial of the issue raised by the pleadings, a verdict was rendered in favor of the plaintiff for $337, and it is claimed that the verdict was not sustained by the evidence.

The evidence upon which the verdict was rendered was given by the plaintiff himself, who, on examination as a witness in his own behalf, testified: “Some time in 1884 I was employed by the defendant on a ditch. Baldwin came to me and said: ‘I have bought all this land above you from the railroad, and all the settlers are now going off, and I want you to take charge of it and keep the ditch in repair, and keep any one from settling on the land’; and said he would give me a dollar a day; . . . . and I said I would do that, and worked from that time, the 21st of April, 1884, until the, 12th of July, 1884, under and pursuant to said contract, and I never have been paid, nor have I ever received anything for said work.”

This evidence proves that the plaintiff rendered services under the agreement stated in his complaint for only about eighty days, Sundays included, and according to his own proofs, he was not entitled to recover for more than that time, at the price per day for which he agreed to render the services. The verdict of $337 was therefore not sustained by the evidence, and the court erred in not granting a new trial.

Judgment and order reversed, and cause remanded for a new trial.

Thornton, J., and Sharpstein, J., concurred.