55 Cal. 204 | Cal. | 1880
The complaint in this case contains two counts, the first averring that on the 15th day of November, 1877, the defendant was indebted to plaintiff in the sum of $873.43, balance due on an account for work and labor done and services rendered by plaintiff to the defendant, at defendant’s special instance and request, in and about a certain mining claim, between the 6th day of June, 1876, and the 15th day of November, 1877; and the second being substantially the same, with the additional
When the evidence was closed, and before the cause was submitted, the Court below, at the request of the plaintiff, gave the following instruction to the jury :
“ If the plaintiff went upon the defendant’s mine to work in June, 1876, with the understanding and consent with defendant that he should take what is called ‘ bed-rock ’ piay, and that the meaning of ‘ bed-rock ’ pay is that plaintiff should receive reasonable wages or pay from the mine itself, without looking to the company personally, and that plaintiff with this understanding and consent was compelled with the knowledge of defendant to sink a shaft and run drain drifts, which is dciulwork, and did run such drain drifts, tunnel, and sink shafts at considerable expense, then, if the defendant discharged plaintiff before he had taken out reasonable wages or pay without any good cause, it is liable to plaintiff for such reasonable wages, less the amount he has received from said mine prior to such discharge.”
It seems to us that the theory of the plaintiff’s case, suggested and presented by the foregoing instruction, is a substantial departure from the case made by the pleadings and the evidence. As already stated, the complaint contains two counts, both of which are in indebitatus assumpsit, and founded on a contract to pay plaintiff so much money for work and labor done and performed by him at defendant’s special instance and request, and the evidence offered by the plaintiff was introduced for the purpose of sustaining this theory.
The plaintiff testified on the trial as follows : “ There was no agreement between me and the trustees relative to my working the mine. I had no express agreement with the trustees, is what I mean by not having an agreement; but they knew that I was at work, and made no objection. One of the trustees
There is no pretense that any agreement to pay the plaintiff out of the proceeds of the mine, was made prior to the. 5th day of July, 1877, and the ground upon which .plaintiff based his right of recovery for services rendered by him before July 5th was, that he worked upon defendant’s mining ground with the knowledge of the officers of the company. If the plaintiff performed work and labor upon the defendant’s mine under circumstances which would make the company liable, that liability would simply be to pay plaintiff what such services were reasonably worth.' But the instruction of the Court went upon an entirely different theory of the case, and by it the jury was told that if the agreement was that plaintiff was to be compensated for his services from June, 1876, down to November, 1877, out of the proceeds of the mine, and if, before such proceeds yielded such compensation, defendant discharged plaintiff without good and sufficient cause, he had a right to recover what such services were reasonably worth.
The pleadings and the evidence did not authorize the instruction. There must have been an express contract between the company and plaintiff, that he should be allowed to work the mine for a definite or an indefinite time, and pay himself out of the proceeds thereof, for the law would not make such a contract by implication; and it is not pretended that any such contract was made, or that any understanding to that effect existed before the 5th day of July, 1877. The Court, therefore, had no right to extend such contract back to the 6th day of June, 1876.
McKinstry, J., and Ross, J., concurred.