Gardner v. Avery Manufacturing Co.

Dodge, J. The evidence quite fully establishes the material facts found by the referee. That plaintiff was employed and did work for the period named is not substantially disputed; that the defendant agreed to pay him as much as he had been paid by previous employers, and that he had been so paid at the rate of $75 a month, is testified to by the plaintiff, and is not denied by any witness, the evidence of the defendant being confined to proof that $50 per month was the limit of reasonable value of such services. From these facts the indebtedness found by the referee results. The reduc [489] tion thereof by further payments was not justified by the pleadings, for no plea of payment, in whole or in part, appears in the answer; but, as such deduction was favorable to the appellant, it need not now be reviewed. Even if the rate of compensation of $50 per month, testified to by defendant’s witnesses, were adopted, still the plaintiff would have earned an amount in excess of the payments admitted in the complaint greater than the amount of the judgment, and such judgment could not be erroneous as against the defendant, although other payments might have been made which it neglected to plead. By the Gourt. — Judgment affirmed.