Biglow v. Carney

Opinion by Ellison, J. A perusal of the entire evidence in this cause fails to show any agreement on the part of appellants to pay plaintiff two dollars and fifty cents per day for hauling, or any other sum. In the absence of a contract price per day the law would imply a promise to pay what it was reasonably worth. No evidence is preserved in the record tending to show what it was reasonably worth to do the hauling plaintiff alleges was done by him. Notwithstanding this absence of testimony the court in instruction number one, tells the jury to find for plaintiff at the rate of two dollars and fifty cents per day. And in instruction number four the jury are told in express terms, that if they believe plaintiff did not agree to haul the lumber in consideration of free transportation on the cars, they would find for plaintiff the sum of five dollars. In the absence of evidence showing an agreement to pay five dollars, or that the hauling was reasonably worth five dollars, we are at a loss to know how that particular sum should be set down as the measure of plaintiff’s recovery. The judgment is reversed and the cause is remanded. All concur.