2 I. The court gave au instruction as follows : “It is an implied contract where one performs labor or services for another at his request, or with his consent,. without any agreement or understanding as -to the-wages or compensation. In such cases the law implies a promise to pay the reasonable worth of the services, and the same may be recovered from the person or persons for whom such services wqre rendered. An expressed contract is one where the parties agree expressly what sum or sums shall be paid as compensation for services.” If the labor was done and material furnished at the instance and request of defendant, as alleged, then there-was an express contract except as to the amount to be paid, and as to that the law implies an agreement to pay the-reasonable value. There may be an express contract as to-the labor and material without an express agreement as to. the amount to be paid therefor.
*752•3*751. II. The court further instructed as follows: “If you find by a fair preponderance of the evidence that the plaintiff furnished certain material and performed certain labor on other chimneys and flues than the one over Wescott’s store, under a contract, either expressed or implied, as defined in these instructions, or that such labor was performed and material furnished with the consent and knowledge of' defendants, your verdict should be for the plaintiff, and you should allow him the reasonable value of the labor performed and material furnished.” There is no allegation in the petition that the material was furnished or labor-done with the consent and knowledge of the defendants. The cause of action stated is “that the labor performed and material furnished was done at the oral instance and request” of defendant’s agent. This court has many times held that it is error to submit to the jury a question not-presented by the pleadings, and it has also held that it is. error to submit an issue as to which there is no evidence.. *752See notes to section 3705 of the Code under “Pertinency to Issues and Evidence.” There is no evidence that material was furnished or labor performed with the consent or knowledge of the defendants or their •agent, aside from the evidence tending to show that it was •at their instance and request. Appellant’s complaints of these instructions are well founded, and for the errors '.therein the judgment is reversed.
