Gambrill v. Schooley

Page, J., delivered the opinion of the Court. , This suit was brought to recover from the appellant for services alleged to have been rendered by the appellee and for certain merchandise. The bill of items, filed with the declaration, shows that the claim is for thirty-three months service at the rate of fifty dollars per month. The amount alleged to be due for merchandise is not in dispute. The appellee admits that his claim is subject to be credited by such sum as may be due to the appellant on account of three notes mentioned in the proof.

The single exception is to the action of the Court upon the several instructions asked for by the respective parties. The proof shows, that in July, 1892, the parties entered into a written agreement, by which, in consideration of certain services to be rendered by the appellee in running the business of the appellant at Roxbury Station, and also in ⁵⁴⁸ performing clerical work at the Roxbury Distillery, the appellee was to receive from the appellant thirty dollars per month, and to have the dwelling and other houses mentioned in the contract, at Roxbury Station, on the B. & O. Railroad, rent-free for two years from the second day of August following. Two or three months after the appellee took charge of the business, the appellant paid him fifty dollars per month instead of thirty, and continued so to do until July, 1895. It was contended by the appellant that the appellee was discharged from the formér’s service at ■that time, but this was not conceded by the appellee, who claims that he was continued in the service of the appellant under a new agreement, and performed such service, up to the first day of April, 1898.

There was evidence offered by both parties, to establish their respective contentions. At its conclusion the appellee asked the Court to instruct the jury that if they found that the plaintiff was in the service of the defendant for the time mentioned in the contract, “ and since the expiration” of that period, “ and at a compensation or salary agreed upon between them,” and that the plaintiff rendered the services charged for, then thpir verdict must be for the plaintiff, &c., subject to the amount due on notes and “ other proper charges.” It may be ¡stated that the services for which the appellee seeks to be paid were rendered, after the expiration of the written contract, that is, after the first day of July, 1895. The prayer requires the jury to find that “services charged for” were so rendered, and were rendered “at a compensation or salary agreed upon between them;” and if the jury found these facts, it not having been shown that the services had not been paid for, it would be their clear duty to find for the plaintiff. In that event, the amount of the compensation or salary provided for by the agreement would constitute the measure of damages, and evidence as to the value of the services, for the purpose of ascertaining what should be the amount of the verdict, would be impertinent.

The special exception to the granting of this ⁵⁴⁹ prayer, was, “ because there was no evidence as to the value of the services.” The theory of the prayer, however, is founded upon the assumption that there was evidence as to an agreement between the parties, by which the compensation