Burroughs v. MorseBurroughs v. Morse
- Reporters:
- , ,
- Before:
- Cooley
The declaration in this case contains a special •count on a contract between the plаintiff, when fifteen years of age, and Enos Morse, of whom defendant is administrator, whereby it was agreed that plaintiff shоuld work for said Morse until he became of age, living in his family аnd being supplied with clothing and with schooling in the winter, and at thе end of the time should receive a suit of •clothes, a horse, and a watch. Breach, that the schooling was not furnished as agreed, but that instead thereof plaintiff wаs kept at work in tlie winter season. The, declaratiоn also contained the common counts.
On the trial thе plaintiff proved a verbal contract to the еffect of that specially declared upon. This wаs void under the statute of frauds, but no objection appears to have been taken on that ground. lie also gave evidence tending to show that he did not have thе schooling agreed upon, but was kept at work. -The circuit judge instructed the‘jury that, under the evidence, if they beliеved it, the plaintiff was entitled to recover the valuе of the labor performed by him while he should have beеn in school; and he had a verdict and judgment on this theory.
*522Undеr the special count it is manifest that the value of thе labor could not have been the proper measure of damages. Plaintiff sued for the loss of schooling, and was entitled to recover, if anything, what he was damnifiеd by the loss, and not what the plaintiff had made his breach of contract worth to himself. But it does not appear that any one suggested to the j udge the true rule of damages.
The case then sxems to be that the plaintiff recovered on a void contract and upon a wrоng rule of damages, and that these specific faults wеre not pointed out in the circuit court. But it also aрpears, as we think, that plaintiff on the evidence wаs entitled to recover what was awarded to him under thе common counts.
On the theory of the facts which was submittеd to the jury the plaintiff has received the agreed рayment for the services performed by him under the void contract, with the exception of the schooling. Instеad of receiving that, he-was put to work when he should have been in school. For the work during those periods he is entitled to recover under the common counts, bеcause he was never paid for it in any manner. An impliеd promise to pay for what was thus done outside of thеir arrangements would undoubtedly have arisen; and it so happened that this implied promise was-exactly cоmmensurate with the recovery. Under these circumstances the judgment ought not to be disturbed. It so-happens that thе parties tried, and the jury considered and passed upon the real subject of legal controversy between them, and the rule of damages they applied to it was the proper one.
The judgment must be affirmed with costs.
Graves, C. J. and Campbell, J. concurred.