Forey v. Western Stage Co.

i evimeasure of value. I. The plaintiff proved that he had rendered the service sued for, and that they were worth one hundred dollars, and rested his case. Thereupon the' defendant introduced a witness for the purpose 0f> prov}ng; anc[ 0ffere(j to prove by him, that the defendant had paid the assistant employed by plaintiff twenty-five dollars in full for his services; this evidence, it is stated in the bill of exceptions, was asked to be “ intro*537duced as a circumstance to show that plaintiff’s claim for three hundred dollars was too high.” The court, on proper objection, excluded the testimony, and this is the first alleged error complained of.

The court properly excluded the evidence. It was not competent to measure the plaintiff’s right of recovery, by what some other person may have consented to accept in full for his services. It could not be any legitimate circumstance that another, under the pressure of necessity, or to avoid litigation, or for any other cause, even willingly, accepted a given sum for his like services. The real question at issue was the value or worth of the services of plaintiff, and not what another may have accepted as payment in full for his.

2. POTAD“ontraótf1 quantum mei'uiu II. After all the evidence was introduced, the defendant asked the court to instruct the jury that they “ must find for the defendant if the plaintiff has failed to prove that defendant promised and agreed to pay A A ° A J three hundred dollars as alleged.” Two or three other instructions of the same import were also asked; but the court refused to give either of them, and instructed the jury that if they were “ satisfied from the testimony that the plaintiff rendered the services for defendant, as claimed in the petition, he is entitled to reasonable compensation for such services, provided his management was proper and reasonably skillful,” &c. The refusal to give the instructions, as asked by defendant, was duly excepted to, and is now assigned as the only other error.

The theory of the instructions, as asked by defendant, must have been and was that plaintiff’s petition alleged and claimed to recover upon a special contract. We do not so understand the petition, and therefore hold, that the court properly refused the instructions as asked, and that the judgment of the District Court stands

Affirmed.