It is insisted on the part of the plaintiff, that he should have been allowed for the entire eight and a half months labor contracted to be performed by his minor son, at the contract price of eleven dollars per month, although his son actually labored for the defendant only six months and eleven days. It appears from the report of the auditor, that after the son had worked for the defendant six months and eleven days, he left the defendant’s service, with the defendant’s knowledge and consent, and without the knowledge or consent of the plaintiff and against his will.

The auditor allowed the plaintiff for all the time his son labored for the defendant, and disallowed the balance. We think there was no error in this. It is clear, that in this form of action, all the plaintiff is entitled to recover upon the facts found by the auditor, is the contract price for the services actually performed. It does not appear from the report that the defendant in any manner violated the agreement; he did not turn the plaintiff’s son away, or in any way prevent the performance of the labor, and the completion of the contract; he did nothing to induce the son to leave his service; he acquiesced in his going, nothing more. Even if there had been a breach of the contract on the part of *490the defendant, that would have, made him liable to the plaintiff for the damage incurred by the latter, but we think the action on book is not the proper remedy for the recovery of such damages.

It appears from the report of the auditor, that he allowed twenty-three dollars of the defendant’s account, in consequence of the testimony of Thomas Hennessy contained in his deposition, which was taken on the 27th day of October, 1857. It is claimed on the part of the plaintiff, that the deposition of the said Thomas was not admissible, and that the twenty-three dollars should not have been allowed.

We think this exception is well taken. It appears that the plaintiff was duly notified to appear at the taking of the deposition of the said Thomas, before Joseph French, a justice of the peace, at his dwelling house in Amsterdam, in the State of New York, on the 27th day of October, 1857, at one o’clock P. M. At the time and place named, the plaintiff appeared with his attorney to attend the taking of the deposition; the magistrate was present, but no person appeared on the part of the defendant. After waiting until three o’clock he again went to the place, when he was informed by the magistrate that the time for taking the deposition had expired, and the magistrate gave him a writing to that effect; he then paid and discharged his attorney, and left. It appears that the attorney of the defendant, who was then on his way to the place of taking the deposition, was delayed, and he telegraphed to the magistrate to continue the taking of the deposition until five o’clock P. M., but we think the fair inference to be drawn from the report is, that the telegraph was not received by the magistrate until after three o’clock, and after he had informed the plaintiff that the proceeding was at an end, and that at that time there had not been any continuance of the time of taking the testimony. When the plaintiff afterwards met the attorney for the defendant, who told him that the proceeding was adjourned until five o’clock, he supposed he knew that the statement was not correct, and disregarded it. We think he was justified in so doing, for it seems to be apparent that at that time there had not been any adjournment of the proceeding. The entry of an adjournment was subsequently made, as appears from *491the report. This notice. did not emanate from the justice, and we think can not he regarded as a notice of an adjournment, that the party was under any legal obligation to regard, or as an original notice to take the deposition at five o’clock.

Judgment reversed and case remanded.