153 Mich. 89 | Mich. | 1908
(after stating the facts).
first question for consideration arises from the contention of defendant’s counsel that recovery should not have been permitted upon the common counts'in assumpsit. We do not think this question a doubtful one. Under the testimony in this case, plaintiff had performed certain services for defendant for which he was entitled to be paid money. Even if it were true, as defendant contends, that plaintiff was bound to stay until April. 1, 1904, he would, none the less be entitled to recover, subject to a deduction for failure to perform his contract, and this recovery could be had under the common counts in assumpsit. Allen v. McKibbin, 5 Mich. 449; Bush v. Brooks, 70 Mich. 446.
The point is also made that there were some items which plaintiff improperly failed to credit to defendant. When these were brought to his attention, plaintiff admitted his error and said they should be credited. This does not justify our saying as a matter of law that plaintiff was lacking in fidelity.
“Have you made an estimate as to what had been sold off the farm during the year that you were there, and the value of what remained to be sold as the products of the farm, what it would yield for that year, and as to how much it would amount to ?”
Defendant objected, upon the ground that this was immaterial and incompetent, and the witness answered, “ something over $1,600.” We do not think the ruling of the trial court erroneous. If the jury had believed
Other complaints are made, but they disclose no reversible error, and their discussion would be of no service to the parties or to the legal profession.
The judgment is affirmed.