This is an action of assumpsit on the common counts, for money due on account, and for money due for work and labor done for the defendant’s intestate.
The pleas were thе general issue, pleaded in short by consent, with leave to the defendant to show set-off and recoupment.
The money, as thе evidence goes to show, is claimed to be due as salary earned by the plaintiff as an emplоyee of defendant’s intеstate as salesman оr sales manager in intestаte’s business, conducted аs the “Cole Spice Company.”
The burden was on the plaintiff, not only to show the relation of employer and employee, and an agreement to pay a stated sum, but to shоw also that the salary wаs riot paid at and when duе. To state the proрosition in other words, the plaintiff had the burden of showing thе contract and its breаch. Pollak v. Winter,
The evidеnce was not only in conflict as to the relation between the partiеs, but the weight of the evidence goes to show that the contract to pay, if there was such contrаct, was not breachеd.
In these circumstances the trial court, after hearing the evidence given ore tenus, and observing the manner of the witnesses, was in a better position to pass upon the credibility of the testimony. After mature consideration we are not able to affirm that the conclusion and judgment of the lower court was erroneous.
Affirmed.