Krou v. Verkentoren

CLOPTON, J. Whether or not the contract of employment was for one year, or only for the balance of the year in which it was made, are immaterial questions. Plaintiff does not sue for the breach of a special contract, but for work and labor done, using the common counts. The suit was instituted before the expiration of a year from the time the contract was made, and the court gave plaintiff judgment only for the balance due for the actual time he worked for defendant. That defendant agreed to pay plaintiff thirty dollars per month, payable monthly, to milk his cows and care for his stock, and that plaintiff' worked until December 29, 1888, when he was discharged, are.undisputed facts. This entitles plaintiff to recover, unless defendant sustains his plea of set-off, which consists of damages in the loss of cattle alleged to have been occasioned by -plaintiff’s neglect. By the contract, plaintiff impliedly stipulated that he was qualified to do the work which he agreed to do, and that he would take reasonable care of the property confided to his charge. If he failed in any essential particular, and defendant suffered damage thereby, it may be conceded, that he is entitled to set off such damage against plaintiff’s claim for wages.—M. & M. Railway Co. v. Clanton, 59 Ala. 392. The burden, 115 however, is on defendant to prove neglect, or want of care, on •the part of plaintiff. The defendant, and other witnesses on his part, testify that in their opinion, or according to their judgment, defendant’s cattle died because of the neglect of plaintiff; but they state no act of neglect, upon which them opinion is based. The evidence fails to sustain the plea of set-off Affirmed.