Allen v. Dillow

BARNARD, P. J. This is an appeal from an order granting a new trial.

It appears without dispute that the parties entered into an oral agreement by which two of the plaintiffs were to take charge of and operate a cattle ranch owned by the defendant, and he was to give them $100 a month, furnish them a house in which to live, furnish eggs, butter and milk for them and for the family of Williams, and give them one-half of the net profits from the operation of the ranch. These plaintiffs, with the wife and three children of Williams, occupied the house for the period in question, and also received the milk, butter, eggs and $100 a month agreed upon.

At the close of this period the defendant claimed that the operation of the ranch had resulted in a loss instead of a profit, and the plaintiffs brought this action. A first cause of action alleged the terms of the contract as above stated; that the plaintiffs had fully performed their part; that the defendant had performed his part except that he had not paid them one-half of the net profit; and that one-half of such profit amounts to $6,500. A second count alleged that for this period the plaintiffs had rendered services to the defendant at his request in earing for this cattle ranch; that the defendant had furnished the plaintiffs and the family of one of the plaintiffs with a dwelling house, butter, eggs and milk, and $100 each month; and that such services were worth $6,500 over and above the things received. The prayer was for $6,500 or such other sum as should be found to be half of the net profits, and such other relief as might seem just and proper to the court.

At the trial the evidence showed, without conflict, that there was no profit from the operation of the ranch during this period. The plaintiffs’ main contention at the trial was that the defendant had further agreed to pay them “good wages” in the event there were no profits. There was evidence, apparently in support of this theory, that the defendant had previously employed one of the plaintiffs for different work, paying him 90 cents an hour, and that the plaintiffs in operating the ranch pursuant to the contract had put in 10 hours a day during the entire period. It was contended that on a wages basis the plaintiffs were entitled to $3,503.70, after deducting the amounts of money the defendant had paid them. No allowance was made in this computation for the value of the use of the house, or of the milk, butter, eggs and other things furnished. The jury brought in a verdict in favor [261]