46 Cal. 248 | Cal. | 1873
1. It was admitted that the plaintiff was Superintendent, under the appointment of the defendant, from the 6th of March, 1868, until the 28th of May, 1869. The evidence was amply sufficient to support the finding of the referee, that there was no special agreement for the plaintiff’s compensation. He was, therefore, clearly entitled to receive the value of his services in the capacity of Superintendent. Appellants urge, as their principal ground of error, that evidence was admitted at the trial, of services rendered by the plaintiff, entirely distinct from those appertaining to the office of Superintendent. Very much of this evidence does not appear to have been objected to at the time it was offered; but at one stage of the proceedings a motion was made to strike it out, and by consent of parties, the ruling upon the motion was reserved until the final argument of the case. There does not appear to have been any direct ruling upon the question at the time of the final argument. The referee, however, in his findings, held that the plaintiff could not recover for extra services rendered during the time of his employment, without a special agreement for extra compensation; but held also that the services to which the defendant objected were rendered in the line of plaintiff’s duty as Superintendent, and under the direction of the defendants.
2. The testimony of the witness Turney as to conversations between the plaintiff and the acting Directors of the defendant, during the period of the plaintiff’s employment, was admissible to show his dissent at that time from the amount of salary proposed by certain of the Directors, and that it was not then considered, by him at least, as a fixed and stipulated sum.
3. The testimony of the plaintiff, that he was requested by the Vice President, and other Directors of the company, to aid in the canvass for the procurement of a county subsidy, so far as it tended to prove a special contract for extra services, would perhaps be obnoxious to the objection that these officers had no power to make such a contract, except when in session as a Board. But, as we have seen, all evidence of any contract for extra services was substantially excluded from consideration by the referee, and the action of the Board in session is not required merely to direct the labor of an employé.
Judgment and order affirmed.
Mr. Chief Justice Wallace did not express an opinion.