152 Mich. 286 | Mich. | 1908
This suit was begun by plaintiff before a justice of the peace in Ionia county. Defendant appealed to the circuit court from a judgment of $300 rendered in favor of plaintiff. From a judgment of like amount rendered in the circuit court, upon a verdict of a jury, the defendant upon a writ of error brings the case to this court for review. Plaintiff’s claim is for work and labqr which he alleges was performed in defendant’s mill under an express contract at the rate of $3 per week and board, which he says was later increased to $4 per week and board. This board, he claims, included also the board of his wife and child. He also claims for work and labor performed in running defendant’s electric light plant for 450 nights at $1 per night. Both parties filed bills of particulars, and in their briefs state that most of the items in the same are admitted'.
Appellant claims that the only items of account important to be considered in this court are:
Plaintiff, at the request of defendant, when the electric lighting plant which was to furnish lighting for the village was installed, was instructed by the superintendent of
The contract as made between the parties in the first instance was that plaintiff would work in the flouring mill learning the business, and receive as his compensation $3 per week and board. This is undisputed. Plaintiff claims that this continued until June 1, 1901, when the wages were increased to $4 per week and board. He married defendant’s daughter in February, 1901, and claims that it was agreed that the last contract should include the board of his wife and child. The electric light plant was installed and plaintiff’s work in that plant began November 26, 1902. It was therefore impossible that any such work as this was within the contemplation of these parties in June, 1897, when they entered into the contract at $3 per week and board, nor later in June, 1901, when plaintiff claims the wages were increased. The work is entirely different from the work under the original or modified contract. It was performed during hours not contemplated in the express agreement. 175 nights of the work charged occurred after work in the mill ceased and when plaintiff was driving a mail route. The case is not within the rule laid down in Schurr v. Savigny, supra. Nor do we think that the other cases cited are in point. ^ The only question is whether the testimony on the part of plaintiff was sufficient to submit to the jury the proposition of an implied agreement as to the work in the lighting plant. The court submitted the question to the jury, instructing them as follows:
There was evidence in the case which justified the submission of this question to the jury, and the oharge above quoted was not erroneous.
The other matters relied upon by appellant relate to claims made by him against plaintiff. Plaintiff had bought a piano for his wife on contract. Payments had been made upon this contract for plaintiff by defendant. The amount of such payments was in dispute. Defendant claims that the court erred in submitting to the jury the matter of a payment of $75 on this contract which plaintiff claimed to have made through his wife, giving her the money for that purpose. This testimony was brought out on cross-examination of plaintiff by defendant’s counsel relative to the piano contract, which contract and a computation showing payments and amount due thereon, March 20, 1908, were then produced by defendant in evidence. Part of his testimony may have been hearsay, but the fact that he gave his wife $75 was material because it appeared from other testimony that a payment of $75 had been indorsed on a copy of the contract, which was produced at the former trial, but was not produced at this trial and defendant’s computation did not contain any such payment, nor did he claim credit for a payment of that amount. It was proper to submit the matter to the jury.
The court in his charge said:
“ Now the defendant also claims for $35 difference on horses. You have heard the evidence as to the value of those horses, the circumstances under which defendant, the father-in-law, took this horse north, the circumstances under which it was brought back, the disposition of the two horses; it is claimed on the part of the defendant that his wife told this young man he could sell the horse for $135 and to take no less. On the other hand this is disputed on the part of the plaintiff.”
Defendant now takes the position that this charge was entirely unwarranted. No such intimation was made at the time to correct the above statement of defendant’s claim made bjy the court.
We have examined the evidence and are satisfied that the question should have been submitted to the jury. If any mistake of fact was made by the court stating defendant’s claim ( and the presumption is there was not) counsel for defendant should have corrected it at once.
Defendant claimed $104 for board of plaintiff’s wife and child for 26 weeks after plaintiff left. Plaintiff claims he left defendant’s house on account of the con
Error is assigned upon the charge of the court in submitting this claim for board to the jury. This portion of ■the charge is too long to quote. Taken as a whole, we find that the court told the jury that ordinarily the law would require plaintiff to pay such board, but if by reason of her conduct plaintiff could not remain with her there and defendant with knowledge of her conduct approved it and harbored her he could not recover; that such conduct must have been without any wrong or connivance of plaintiff, and that he must show the truth of all this by a preponderance of evidence; that if the jury were satisfied by a preponderance of the proof that her conduct was such that a man could not keep his self-respect, and he believed she was guilty of misconduct, and that was the reason he left, and defendant had full knowledge of all the facts, and kept her as a boarder, he could not recover, otherwise, he could. The jury had heard all the testimony and knew to what facts the court referred. It was not necessary for the court to repeat the evidence bearing upon the question. The question was one of fact for the jury. No requests to charge were presented by defendant and the charge cannot be said to have been prejudicial to defendant.
We do not find any reversible error in the case.
Judgment is affirmed.