By the Court.

delivering the opinion.

The part of the charge excepted to was this : “ And the law presumed that the parties mutually agreed to abandon the contract, in the ¿bsence of proof to the contrary.”

We are not prepared to affirm this part of the charge, *27but, nevertheless, we think it not a sufficient matter to require the granting of a new trial. • There was sufficient evidence to support the verdict; and the verdict was equitable. One man ought not to enjoy another man’s services without paying something for them.

There was no motion for a new trial, consequently, we are not under the constraint of the new trial act of 1854.

Judgment' affirmed.