Devens, J.
The plaintiff relied upon the facts that he had rendered certain valuable service for the defendants at their request, and that such service was reasonably worth the sum of $200, as establishing a contract by the defendants to pay this sum. Such is the legal interpretation of his declaration, which, in form, was an allegation that the defendants owed him a certain sum according to an account annexed. The plaintiff did not claim that any fixed price had been agreed upon, although, had this been the case, such price might be recovered under a similar count. Lowe v. Pimental, 115 Mass. 44" court="Mass." date_filed="1874-03-11" href="https://app.midpage.ai/document/lowe-v-pimental-6417648?utm_source=webapp" opinion_id="6417648">115 Mass. 44. By denying the allegations of the plaintiff’s declaration, the defendants put in *473issue, not merely the facts stated, but the existence of the contract, which was the legal inference therefrom, if no other facts appeared. While proof of these facts, with the aid of the legal inference to be deduced therefrom, establishes a prima facie case, so far as proof of a contract is required, it does not change the burden of proof in the case. The defendants relied upon an alleged agreement between themselves and the plaintiff, by which the latter was to do the work, the price of which is sued for, under a special contract for a sum certain, which the plaintiff had already received. It was for the defendants to offer some evidence to rebut the. inference to be deduced from the facts proved by the plaintiff. They did not seek to avoid the contract alleged by the plaintiff, or the effect of it, but to disprove its existence. While, in form, their evidence was affirmative, the use they sought to make of it was strictly negative, and was for the purpose only of rebutting the plaintiff’s proposition as deduced from the evidence offered by him. The burden was still upon the plaintiff to prove the contract alleged by him, upon all the evidence in the case. If we suppose this evidence to be equally balanced, he could not recover, as he has failed to prove that which is essential. In an action for labor and services rendered, where the plaintiff seeks to recover what they are reasonably worth, he cannot do so if the whole evidence leaves it in doubt whether they were not gratuitously rendered. The defendant, by asserting that they were so rendered, and offering any legal evidence to that effect, meets the prima facie case of the plaintiff, and the issue is then to be determined upon the whole evidence.
In Warren v. Ferdinand, 9 Allen, 357, which was an action brought for use and occupation of real estate, it was held that the defendant might prove a written lease of the premises under an answer simply denying the allegations in the declaration, and this for the reason that it rebutted and disproved tne plaintiff’s case. The existence of such a lease was not a fact in the nature of confession and avoidance, but one which sustained his denial of the plaintiff’s allegations.
In Gay v. Bates, 99 Mass. 263" court="Mass." date_filed="1868-03-15" href="https://app.midpage.ai/document/gay-v-bates-6415338?utm_source=webapp" opinion_id="6415338">99 Mass. 263, the declaration alleged that the defendant received iron for storage on the ordinary contract of a warehouseman; the answer denied this, and alleged that it was *474received on a contract by which the plaintiff assumed all the risk of its being injured by salt. It was held, at the trial, that the burden of proof did not shift upon the defendant, upon his admitting that he received the iron and stored it where it was injured by salt, but was on the plaintiff throughout to establish the contract on which he relied, and not alone the particular facts from which he sought to deduce it. To the same effect are Wilder v. Cowles, 100 Mass. 487" court="Mass." date_filed="1868-11-15" href="https://app.midpage.ai/document/wilder-v-cowles-6415562?utm_source=webapp" opinion_id="6415562">100 Mass. 487, and Nichols v. Munsel, 115 Mass. 567" court="Mass." date_filed="1874-09-15" href="https://app.midpage.ai/document/nichols-v-munsel-6417763?utm_source=webapp" opinion_id="6417763">115 Mass. 567.
The instruction of the learned judge was therefore erroneous, in holding that, upon proof that the services were rendered and proof of what they were reasonably worth, the burden of proof was on the defendants to show that there was an agreed price therefor. The defendants did not, by their evidence, seek to set up an independent proposition or distinct case, but to meet that set up by the plaintiff.
Exceptions sustained.