| Mo. | Jul 15, 1855
delivered the opinion of the court.
1. The main point on which the appellant relied for a reversal of this judgment is not saved by the bill of exceptions. The evidence in relation to the agency of Bowman was objected to by the appellant, but it does not appear that he saved any exceptions to its admission.
The defence mostly relied on was, that Bowman, the son-in-law of the appellant, was his agent in the undertaking, and by his conduct compelled the respondents to leave his service. Evidence of the acts and declarations of this Bowman to prove his agency, were given in evidence, to which the appellant objected, but it does not appear that any exception was taken to the action of the court in admitting this evidence. The fact testified to by some of the witnesses, that Bowman was. intemperate in the use of intoxicating liquors, to which an exception was taken, may have been irrelevant, but its admission could not create such an effect as would warrant the reversal of the judgment. Matter may be irrelevant or impertinent, yet, if it is not of a nature to mislead, inflame or prejudice the jury wrongfully, its admission in evidence cannot be assigned for error.
2. There was no impropriety in excluding the evidence showing the value of the outfit furnished by the appellant, as that was not the measure of the damages sustained by him by the breach of the contract on the part of the respondents. For furnishing the outfit, the appellant was to be requited in services, to be performed in California. The value of those services was the standard by which the damages incurred by him were to be ascertained.
8. There was no error in permitting the witness, Ferre, to testify as to the amount he earned in California by the day. The amount earned by him was some evidence of the value of labor in that country.
4. The evidence in relation to the sufficiency of the team, offered by the appellant after the respondent had closed his case,
We cannot say that the court erred in refusing to instruct, as was required by the second direction prayed by the appellant. In saying this, it is not our intention to convey the idea that the meaning of the agreement between the parties was, that the respondents should work for the appellant during the six months which immediately succeeded their arrival in California. Had the instruction prayed for contained this idea alone, which would have been sufficient for all the purposes of the appellant, we will not say it would have been unwarranted. But the instruction asked is not very easily understood, and as it professes to go on the equity of the thing, we are of the opinion it should have made some reference to the support and maintenance of the respondents, had they been compelled to remain idle after their arrival in California. Would they have remained in a state of idleness at their own expense, or at the joint expense of the parties to the contract?
5. There was no error in refusing the fourth instruction asked by the appellant, as to the power of disaffirming the contract in Nickel, by reason of his infancy; nor in giving the instruction in relation to infancy prayed by the respondent, Nickel. The rule that, if an infant avoids an executed contract, when he comes of age, on the ground of infancy, he must restore the consideration which he had received, has no application to the circumstances of this case. This is no executed contract. It is an agreement on the part of an infant to perform services in consideration of provisions previously furnished, and if infancy is not a good plea against a contract of that nature, it is not easy to see of what avail such a defence is in law.
We are of the opinion that the second instruction given for the respondents was erroneous. There was no evidence in the case which warranted the court in putting the question of agency hypothetically to the jury. The declarations of Bowman to
With the concurrence of the other judges, the judgment will be reversed, and the cause remanded.