The instruction given by the court to the jury, and to which the defendants, by their attorney excepted, was as follows:

“The general denial puts in issue every fact necessary to establish in the plaintiff a right of recovery for any sum whatever. But on the evidence, it is not disputed that the plaintiff was in the employ of defendants for the period, substantially, as he claims. The great controversy, aside from the statute of limitations, is as to whether the services were rendered under an implied contract, by which the plaintiff is entitled to recover its reasonable value, or on an express agreement at a certain sum per month, as alleged in the answer. Now, as the service is by the evidence of the defendants substantially admitted, so far as the time is concerned, before the defendants can limit the amount of recovery by the special agreement alleged, its existence must be established by a preponderance of the evidence. As to that, the burden of proof is upon these defendants.”

A majority of the court is of the opinion that the trial judge did not err in thus instructing the jury, and the judgment of the circuit court must, therefore, be affirmed.

Judgment accordingly.