
    Marden Hariston vs. Robert D. Sale.
    In this country a contract for overseers’ wages is not an entire contract by the year.; and although an overseer may contract for a year, and taay be turned off for misconduct before the time expires, he is, notwithstanding, entitled to recover for the time he conducted himself properly.
    An overseer, having been engaged, cannot put another in his place, however equal to himself in capacity, without the consent of his employer.
    H. engaged S. as an overseer for a year, at $650 ; before the year expired, S. left without the knowledge or consent of H., though he employed a substitute, who, during the absence of S., conducted the business of H. equally as well as S. could have done. S. sued H. for his full wages, and the jury returned a verdict in favor of S. for the whole sum claimed, with interest. H. moved for a new trial, and the court below overruled the motion : Held, that the verdict was excessive and a new trial should have been granted.
    In error, from the circuit court of Lowndes county; Hon. H. S. Bennett, judge.
    This was an action of assumpsit, brought by Robert D. Sale against Harden Hariston. The declaration contained three counts. The first was founded on an instrument in the following words, to wit: “I am to give Robert D. Sale $650 for the year 1840, and, if I am satisfied with him, to add $25 more.” “ Harden Hariston.” The second was a common count for work, and labor, and services rendered as an overseer; and the third was a common money count. The defendant pleaded the general issue. The jury found a verdict in favor of the plaintiff, for the sum of six hundred and seventy-nine dollars and four cents, and the court entered judgment accordingly. The defendant then moved for a new trial, which motion the court overruled, and the defendant filed a bill of exceptions, which seis out the following facts, viz. : That on the trial the plaintiff read to the jury the writing sued on, and the two following agreements, both of which were written on the same paper with the instrument declared on, to wit:
    
      
      “ Know all men, by these presents, that I, Robert D. Sale, of the county of Lowndes, Mississippi, have this day agreed to oversee for Harden Hariston, for the year 1839, and the said Sale agrees with the said Hariston, and binds himself to discharge the duties of an overseer, in an attentive and faithful manner, to attend to keeping the tools on the plantation in good order, to attend well to the stock of all kinds on the plantation of said Hariston; in fine, to discharge his duties as an overseer in such a way as to redound mostly to the interest of the said Hariston : and the said Hariston, on his part, in consideration of the obligation of the said Sale, and on his diligent and faithful compliance with the same, binds himself to pay the said Sale the sum of five hundred dollars, at the expiration of said year; and also to board the said Sale; and the said Hariston further agrees, that if the said Sale makes one hundred and eighty bales of cotton, averaging five hundred weight per bale, to pay him, the said Sale, one hundred dollars extra of the above five hundred dollars. As witness we have hereunto set our hands, and affixed our seals, this 25th day of January, 1839.
    Robert D. Sale, (l. s.)
    Harden Hariston.” (l. s.)
    “ In addition to the within the said Hariston agrees further, that if the said Sale shall make the said Hariston two hundred bales of cotton on his plantation, the present year, averaging five hundred weight per bale, to pay him the further sum of twenty-five dollars extra for the within; this 25th day of January, 1839.
    Robert D. Sale, (l. s.)
    Harden Hariston.” (l. s.)
    It was admitted that the writing declared on was given in consideration of the plaintiff’s services as overseer, on the plantation of the defendant, for the year 1840.
    The defendant then proved, by several witnesses, that about the 1st day of December, 1840, the plaintiff, without the knowledge or consent of the defendant, employed his, plaintiff’s, brother, a young man of about twenty-two years of age, to superintend the defendant’s business, while he, plaintiff, visited his sick mother in the state of Georgia, or Virginia. And that the plaintiff did not return to this state until about Christmas; yet all the witnesses, when interrogated on that point, testified that the business of the defendant was as well attended to during the plaintiff’s absence as when he was at home; and that the defendant made a very abundant crop that year: which was all the evidence offered on either side.
    The defendant removed the case to this court by a writ of error.
    Grayson, for plaintiff in error.
    The principle, that a party to an entire contract cannot abandon it and sue for his labor upon an implied assumpsit, is one too well settled to be now mooted. The question has been often adjudicated by this court. See Leflore v. Justice, reported in 1 Smedes & Marshall, and Wooten v. Reid. It is not contended by the counsel for the defendant in error, that the verdict was in accordance with strict law; but it is contended that the court, under the circumstances, ought not to grant a new trial upon the ground that substantial justice has been done.
    It is a well settled rule that courts will grant new trials when the verdict is contrary to law or evidence. See 1 Burr. 390; 2 Ibid. 1216; W. Black. 463; 1 Term, 186; 3 Barn. & Aid. 692; 1 Harper’s S. O. R. 56; 1 Bing. 158; 3 Tenn. 427; 3 Johns. 150; 8 Martin’s Louis. 208; 9 Oowen, 73; l Wend. 475, 506 ; 1 Bay, 269; 5 Mass. 547 ; 5 How. 277.
    But it is contended that this case is without the operation of the general rule, upon the ground that substantial justice has been done; and it is said that numerous cases are to be found in the books where the courts have refused to grant new trials, upon the ground that the jury found contrary to the evidence. These are, upon examination, found universally proceeding upon the ground that the jury found against the weight of evidence merely. Cases in which the plaintiff made out his case to the satisfaction of the jury, although he failed to satisfy the court. Cases in which the law was in his favor, although the court doubted’Vhether the evidence was sufficient to warrant the finding. Cases are also cited in which the court refused to grant new trials, where the plaintiffs failed to make out their cases on account of some slip in the pleadings. In these cases the court refuse to grant new trials upon the ground that on the whole case the plaintiff either did have, or could, by an amendment in the pleadings, have a right of recovery. It is not here as in those cases. The plaintiff, in the court below, by no amendment in the pleadings, nor in any mode in which the case could be presented, would be entitled to a recovery • the contract being entire, and he having abandoned it before an entire performance. It seems to me to be a settled rule of law, that if a man abandon his contract before he has performed his part, he cannot sue upon the special contract, nor can he waive the special contract, and sue upon the implied assumpsit for work and labor. If this be a settled rule of law it is a settled rule of justice; for, to the mind at all acquainted with or informed as to the true nature of our jurisprudence, a distinction between a rule of law and a rule of justice would seem to be absurd. The rules of positive law are all founded in natural justice, and they are sanctioned by a long experience of their great utility in subserving and answering the ends of justice. If the law required of the defendant in error a performance of his part of his contract, prior to his right of action against the plaintiff in error, then justice required it; and a verdict for him, without such performance, would be in violation of law, and in opposition to justice. As to the technical objection that the note sued on was given after the expiration of the overseer’s term, the whole record shows the contrary. The contract is, upon its face, without date, but its date is sufficiently shown by the words of it, and the other portions of the previous contract for the year before, which was also in evidence. It is not described in the declaration as dated at any particular time, but there was merely an averment of its execution on a particular day, to meet the requirements of the rules of pleading.
    
      
      Harris and Harrison, for defendant in error.
    The declaration was not framed upon a special contract. If there was such a contract, the party should have availed himself of the benefit of it in the right way and at the proper time. The bill of exceptions does not show any, but goes on to state that “the defendant, Hariston, proved that about the 1st day of December, 1840, said Sale left without his knowledge or consent; that Sale employed his brother, a young man of about twenty-two years of age, to superintend defendant’s business, and the plaintiff was absent until about Christmas, on a visit to Georgia or Virginia, to see his sick mother. Defendant’s (Hariston’s) witnesses all stated, when interrogated to that point, that the business of the defendant was well attended to in the absence of plaintiff, as well as if plaintiff himself had attended to it; that defendant made that year a very abundant crop, and that plaintiff (Sale) returned home about Christmas.” There is nothing in this to prove that there was an entire contract, or that it was abandoned or put an end to by either party, or that either party desired to do so. Sale was temporarily “ absent,” and, as the bill of exceptions expressly states, “returned home” about Christmas. He went to see a sick mother; was absent about three weeks; had the business as well attended to in his absence as he could have done it himself; left with the intention of returning, and did come back before the expiration-of the year. He served the balance of the year out, and then took the note for the money in consideration of his services for the year then just past. True, he was absent about three, or say four weeks, but we are under the impression that no case can be found in the books, where, under circumstances like these, it has been decided that the laborer is not worthy of his hire. Hariston, as his own witnesses proved, suffered no loss and sustained no damage. His business was not only attended to as well as the plaintiff below could have done, but in fact was “well attended to,” and he made not only an abundant, but “ very abundant ” crop.
    
      “ When the equity and justice of the case are with the verdict, the circumstance of its being against evidence is not of itself sufficient to set aside the verdict and grant a new trial.” 1 H^ayw. 14; Hunter, Adm’r. v. McNeil, 5 Ohio, 513.
    “Where justice has been done, the court will not grant a new trial, or leave to plead, or let in a mere technical defence.” Bush et al. v. Critchfield et al. 5 Ohio R. 114; Bates v. Cooper, lb. 115 ; 6 Monroe, 61 ; 3 J. J. Marsh. 717; Gregory v. Allen, Mart. & Yerg. 74.
    
      “ Even where the verdict is plainly against law, yet the court many times properly deny a new trial.” Ex parte Bailey, 2 Cowen, 479.
    “To induce the granting of a new trial, there should be strong and probable grounds to believe, that the merits have not been fully and fairly tried, and that injustice has been done.” 12. Wend. 47; 3 Johns. R. 532 ; lb. 239; 2 Caines’s R. 90 ; 5 Johns. R. 138; 8 lb. 369 ; 2 T. R. 4; 1 Bos. & Pul. 339 ; 1 Taunt. 12; 1 Burrows, 11; Tb. 53; 2 Burrows, 664; lb. 936 ; 4 T. R. 468; Baynton v. Finnall, 4 S. &• M. 193.
    As for the articles of agreement written upon the same piece of paper with the note, they have nothing to do with the case. They bear date in January, 1839, and contain the evidence of the contract for that year.
   Mr. Justice Thachek

delivered the opinion of the court.

Writ of error to Lowndes county circuit court.

The declaration contains a special count upon a promissory note, and also common counts. The instrument sued on is in the following words: “I am to give Robert D. Sale $650 for the year 1840. Harden Hariston.” Plea, general issue. It was admitted, on the trial, that the note or memorandum sued on was given in consideration of Sale’s services on the plantation of Hariston, for the year 1840. It was proved that sale was absent from the plantation nearly the whole of the month of December, 1840, without the knowledge or consent of Hariston; but that he procured a substitute during that time, who conducted the business equally as well as he could himself have performed it. A verdict and judgment were rendered for the full amount of the sum claimed in the action; and a motion for a new trial was overruled.

The strict rule of law, governing contracts, has been much relaxed in this country in relation to those made between employer and overseer. In South Carolina, it has been held that a contract for overseer’s wages is not an entire contract, by the year; but that although an overseer had contracted for a year, and was turned off for misconduct, he might, notwithstanding, recover for the time he conducted himself properly. Byrd v. Boyd, 4 McCord, 246; Ib. 249; Ib. 26. We are inclined to adopt this principle of decision. In this case, Sale was undoubtedly entitled to recover for the period of time that he himself was engaged upon the plantation ; but there being no evidence that the services of his substitute were received by Hariston, there was no warrant for the finding for the full time. An overseer, having been once engaged, cannot put another in his place, however equal to himself in capacity, without the consent of his employer.

On account of the excess of the finding, the judgment of the circuit court must be reversed, and a new trial granted.  