
    Sanns et al. v. Neal.
    
      Action on a quantum meruit for work and labor performed — Special contract set up in defense — Burden of proof on defendant.
    
    (Decided October 16, 1894.)
    Error to the Circuit Court of Gallia county.
    E. Lincoln Neal, the defendant in error, filed his amended petition in the court of common pleas, against Peter A. Sanns and James H. Sanns, partners under the firm name of P. A. Sanns & Son, the plaintiffs in error. . The plaintiff below, in his amended petition, alleged:
    “That the defendants, Peter A. Sanns and James H. Sanns, are indebted to him in the sum of six hundred and eighty-one and 50-100 dollars for work, labor and services done and performed by said. plaintiff ■ for said defendants, at their special instance and request, as manager and clerk of their upper drug- store in Gallipolis, from the 4th day of March, 1884, up to the 4th day of October, 1890, as a balance due on an account for said work and labor, a copy of which said account is as follows, with all credits thereon.”
    (Here follows a copy of the account. with all credits thereon.) “Wherefore the plaintiff asks judgment. against said defendants for said sum of $681.50, with interest thereon, ” etc.
    Por answer, the defendants said:
    “1. That they deny all and singular the averments of said petition as therein alleged, except the averment that these defendants are partners under the firm name of P. A. Sanns & Son.”
    
      “2. That all the supposed and alleged services-referred to in said petition as rendered by plaintiff for said defendants, were rendered and performed under and by virtue of special contracts. * * * That the wages and compensation for the entire time under said special contracts amount to the sum of $3,101.33. The services so rendered under said special contracts are the services referred to in said petition. That during said employment and service, these defendants paid to said plaintiff the sum of $3,194.40, from time to time, during and for said service, as is set forth in the statement and account of such payments hereto attached, and made part hereof. .Defendants therefore say that they have overpaid said plaintiff, and there is nothing due to him on account of said pretended services.”
    The jury returned a verdict for the plaintiff for the sum of $682.63. The defendants moved for a new trial for the alleged reason, among others; That the court erred in instructing- the jury that the burden of proof was on the defendants to show that the services set out in the petition were rendered under a special contract as to the price tobe paid therefor.
    The motion for a new trial was overruled; exception was taken by the defendants; judgment was rendered for the plaintiff, which was affirmed by the circuit court; and it is sought by the present proceeding in error, to reverse the judgment of the circuit court.
    
      Samuel A. Nash and D. B. Hebard, for plaintiffs in error.
    
      C. H. D. Summers and White & Holcomb, for defendant in error.
   By the Court.

The instruction given by the court to the jury, and to which the defendants, by their attorney excepted, was as follows:

“The general denial puts in issue every fact necessary to establish in the plaintiff a right of recovery for any sum whatever. But on the evidence, it is not disputed that the plaintiff was in the employ of defendants for the period, substantially, as he claims. The great controversy, aside from the statute of limitations, is as to whether the services were rendered under an implied contract, by which the plaintiff is entitled to recover its reasonable value, or on an express agreement at a certain sum per month, as alleged in the answer. Now, as the service is by the evidence of the defendants substantially admitted, so far as the time is concerned, before the defendants can limit the amount of recovery by the special agreement alleged, its existence must be established by a preponderance of the evidence. As to that, the burden of proof is upon these defendants.”

A majority of the court is of the opinion that the trial judge did not err in thus instructing the jury, and the judgment of the circuit court must, therefore, be affirmed.

Minshall, J., dissents.

Judgment accordingly.  