| Cal. | Jul 1, 1857
after stating the facts, delivered the opinion of the Court—Murray, C. J., concurring.
The rule is well settled by repeated decisions of this Court, that the verdict of a jury or the finding of a Court sitting as a jury, will not be disturbed when there is a conflict of testimony. But it is equally well settled that where there is no evidence to sustain a verdict or finding, that it should be set aside and a new trial granted. In this ease it was very fully proven that the usual wages of a journeyman hatter were fifty dollars per week, and that plaintiff was an excellent workman. As to the amount of wages the plaintiff was to receive there was a conflict of testimony, and we cannot disturb the finding of the Court. And as to the objection that a special contract was proven, and that, therefore, plaintiff could not recover under this complaint, this Court has held, in the case of Jourdan v. Reynolds & Co., that “ where the entire performance of a special contract has been prevented by one of the parties, or where its terms have been afterwards varied by the agreement of both parties, the action for the amount due for work and labor, should be in the form of indebitatus assumpsit, and not upon the contract.” Now, had the plaintiff sued for damages because the defendants had dissolved the partnership, and thus prevented him from prosecuting an advantageous business, then he must have declared upon the special contract. But as he only seeks to recover his wages, when the defendants, by their own act, have violated the agreement and rendered it impossible to perform his part of it, he may elect to sue only for the wages, and may declare simply for work and labor.
Judgment affirmed.