— This action was brought before a justice of the peace upon a statement which alleged, without giving any dates or specifications of time, that defendant owed plaintiff,. August 23, 1890, $227.50 or $1.25 per day, for services or work rendered defendant by plaintiff’s son, Hugh S. Dunn, who was at the time about seventeen years old; that plaintiff could have made the son’s work worth the sum named, but for the fact that defendant employed the son as teamster for defendant against the protest of plaintiff, and, therefore, plaintiff prays judgment for the amount stated.
H. T. Dunn to Mike Altman, 1890.
The trial in the circuit court was before a jury. It resulted in a verdict and judgment in favor of the plaintiff in the sum of $50. The defendant prosecutes this appeal.
At the trial in the circuit court the plaintiff gave evidence tending to show that his son Hugh, aged seventeen, had been working for the defendant, doing logging and rafting, with the plaintiff’s consent, prior to January 12, 1890, at which date the plaintiff notified the defendant not to employ the boy any longer, as the plaintiff needed him at home, — at the same time informing the defendant that, if he did employ the boy any longer, the plaintiff would hold the defendant liable for the wages and sue him for damages. Plaintiff also gave evidence tending to show that, in April, 1890, the plaintiff again notified the defendant not to employ the boy, but that, notwithstanding these warnings, the defendant did employ the boy at intervals between January 12, and August 23, 1890. The testimony of the plaintiff himself would not enable the jury to arrive at any definite conclusion as to the amount due for the services of the boy. But the plaintiff called the boy as his witness, and the boy testified that he worked for the defendant about all the month of January, 1890; that is, during all the time in that month that the weather permitted work. He also worked for him in the months of February, March, April, May, and down to the twenty-fifth of June. He then resumed
We now come to an important point which was-controverted upon the evidence. This related to a settlement claimed to have taken place between the-plaintiff and the defendant for the services of the boy down to the date of the settlement, which is variously fixed by the witnesses from April to June, 1890 ¿ the plaintiff’s testimony fixes it in April, and the defendant’s as late as June. The defendant’s testimony was distinctly to the effect that this settlement was a settlement of all matters of difference between the plaintiff and himself down to that date, including what was due the plaintiff for the services of the boy. Both parties. admit that the defendant paid to the plaintiff in that settlement the round sum of $10. But the plaintiff in his testimony takes the position that the settlement included only what was due him from the defendant for keeping cattle for the defendant during the previous spring. The boy was present and participated in the settlement; that is shown by the testimony of all the witnesses, the plaintiff, the defendant and the boy. The boy, who was called as a witness for the plaintiff, testified in support of the testimony of the defendant, that the settlement included a settlement for his services down to that date, as well as what was.
“Q. When he paid the $10 was that for your son’s work or any part of it? A. Not to my knowledge.
“Q. It was understood that it was for the getting up and the feeding of those cattle? A. Yes, sir.”
I. This statement of the testimony brings us to the first assignment of error, which is that the verdict was based upon mere conjecture or surmise. This is predicated upon the view, that there was no evidence tending to show the definite number of days work performed by the boy for the defendant, for which the defendant had not rendered compensation either to the father or to the boy with the father’s consent, or in necessaries furnished the boy. Taking the testimony of the father as the basis upon which to decide this question, which was to the effect that,' during the period named, from January 12, to August 23, 1890,
II. It is also assigned for error that the court excluded, on the cross-examination of the plaintiff, evidence of what the boy was earning, with the plaintiff ’s consent, just before the year 1890. It is argued that this evidence, if admitted, would have given the jury a criterion by which to determine what the. boy was capable of earning during the period of time embraced in this action, and what his services were really worth. We do not gather the force of this assignment of error, because we do not see that there was any particular controversy between the parties at the trial as to what the services of the boy were .really worth. The plaintiff, in his statement, claims for such services at the rate of $1.25 per day. The boy testifies that he was paid by the defendant at that rate per day. The defendant testifies that he paid the boy at the rate of $1 per day. Other evidence is to the effect that the value of the services of the boy was, without board, $1.75 per day, but the value of board per day does not appear. The verdict of the jury is within the evidence, even under the defendants theory, that he was paying the boy at the rate of only $1 per day.
III. The next assignment of error is that the court erred in refusing to allow the plaintiff to state, on cross-examination, what he said to his son after a previous trial of this case. The page of the record is not referred to, to which this assignment relates; but we find, on page 16, the following colloquium, which we conclude is the evidence referred to:
*238 “Q. Do you remember Laving a conversation with your son on the night of the trial of this case in Kline’s hotel? (Objected to by counsel for plaintiff, because incompetent and irrelevant, Objection sustained; to which ruling of the court the defendant objected and excepted at the time.)
“Q. Did you not, on the night that this trial was .submitted before, in Kline’s hotel, in New Madrid, have a conversation with your son, in which you reprimanded him for swearing as he had sworn, and you said to him that his testimony had beat you out of the suit, or words to that effect? (Objected to by counsel for the plaintiff, because incompetent. Objection sustained. ‘"What Hugh Dunn may have sworn to is incompetent as far as this witness is concerned.’ The ruling of the court objected to and excepted to by the defendant at the time.)”
In support of this assignment of error counsel for the defendant appeal to the well-known rule relating to what is called the indirect impeachment of a witness, which is, that the witness may be interrogated, on cross-examination, as to whether he had not, on a previous occasion out of court, made statements contrary to the statements made by him on the witness stand. Brown v. Weldon, 27 Mo. App. 251. The rule has no application to this assignment of error, because it does not appear, from the language above quoted, that the object of the question was to elicit from the witness the fact, that he had made different statements out of court from those made by him on the witness stand. It is, of course, admissible to show that a party has attempted to intimidate a witness, not only on grounds of public policy, but also as affecting the integrity of his case. But we do not see that the question excluded had a tendency to elicit such an attempt on the part of the plaintiff, or to draw anything more than a natural
IV. The next assignment of error is that the court erred in excluding, on the cross-examination of the boy, evidence of what he said to the defendant about having his father’s permission when he returned from his father’s house to work for the defendant in June. We need not argue the proposition, that it would have been error to admit this evidence over the objection of the defendant. The defendant had, at the request of the father, discharged the boy and sent him home. Shortly afterwards the boy returned to the defendant, and then it was sought to elicit the statements which the boy made to the defendant upon the occasion of his return. Such statements would have been no part of any res gestae; would have been clearly hearsay; would not have been binding upon the father, as he was not present when they were made, and as it was not offered to show that he authorized them in any way. Mason v. Hutchins, 32 Vt. 780. The admission of them would .have been contrary to all principle, and we are sur
V. The next assignment of error challenges the propriety of the instruction upon which the court submitted the case to the jury. We are not satisfied that' this assignment was properly brought to the attention of the trial court in the motion for new trial. The only clause in that motion which we can imagine as intended to refer to the instruction reads thus: “The court, erred in declaring on part of plaintiff.’’ The word “declaring” is so illegibly written, that it might equally read “declaiming;” and we are not sure that “declaiming” is not the word intended, since there was an altercation between the court and counsel for the-defendant during the trial and in the presence of the jury. But, assuming the word to be “declaring,” this is not apt language in which to assign in a motion for new trial the giving of an erroneous instruction to the jury. But, with the view of giving the defendant the benefit of any doubt on the question, we have examined with care the instruction in connection with the evidence, and we have come to the conclusion that it is not a misdirection.
We perceive no error in the record, and the judgment will, therefore, be affirmed. It is so ordered.