DeWitt v. Cullings

LyoN, J. This is an action to recover an alleged balance .due from the defendant to the plaintiff for work and labor. The defense set up in the answer is, that the defendant employed the plaintiff to dry hops for him, that the latter held [299] bimself out as an expert in that business, but that be dried tbe defendant’s bops in a negligent and unskillful manner, whereby tbe' defendant was damaged, etc. Tbe testimony tended to prove sucb defense. Tbe plaintiff recovered judgment in tbe court below for tbe full amount of bis claim, and tbe defendant bas appealed to this court. The court refused to give the following instructions to tbe jury as requested by tbe defendant, and no instruction equivalent thereto was given : “ If tbe plaintiff claimed to the defendant to have skill in tbe drying of bops, and hired himself out to tbe defendant to dry his bops, be was bound to use sucb skill as was necessary to properly do tbe work; and if be failed, and the defendant sustained damages, be may recoup tbe same in this action, though they might equal tbe plaintiff’s claim.” This instruction contains a correct statement of tbe law of the case, and should have been given. Tbe judgment must be reversed, and a venire de novo awarded. By the Court. — So ordered.