
    (88 Hun, 233.)
    ROBINSON v. HUNT.
    (Supreme Court, General Term, Fourth Department.
    July 5, 1895.)
    Pleading—Proof—Variance.
    In an action to recover the contract price of work done, it is error- to receive evidence as to the value of the work.
    Appeal from Otsego county court.
    Action by Grover C. Robinson, an infant, by his guardian ad litem,. Edwin E. Pattengill, against Ernest R. Hunt, for wages. Judgment in favor of plaintiff was entered by the justice, and defendant appealed to the county court, where a new trial was had. Front a judgment in favor of plaintiff, and from an order denying a motion, for a new trial, on the minutes, defendant appeals.
    Reversed.
    Argued before HARDIN, P. J., and MARTIN and MERWINr JJ.
    O. F. Matterson and Charles H. Searle, for appellant.
    Nathan Bridges and Albert 0. Tennant, for respondent
   MARTIN, J.

The purpose of this action was to recover wages earned by the infant plaintiff while working for the defendant in one-of his cheese factories. The plaintiff alleged in the complaint that he worked for the defendant at the agreed price of $28 a month for eight months and four days, and that there was due him therefor-the sum of $65, with interest. The complaint also contained a count or cause of action on quantum meruit for the value of the plaintiff’s-services, which were alleged to have been reasonably worth the sum of $28 per month, and that there was due the plaintiff therefor the sum of $65. In another count it was alleged that there was a settlement of their accounts between the parties, and that the sum of $65 was found to be due the plaintiff, and had not been paid by the defendant. The answer admitted that the defendant employed the plaintiff to work for him in running his factory at the agreed price of $28 per month, and then alleged that, by reason of his carelessness and negligence in doing his work, his services were of no value, but that he (the defendant) thereby sustained damages to the amount of $100, which he set up as a counterclaim,, and for the purpose of showing that the plaintiff’s services were of no value.

Upon the trial, the plaintiff produced a written paper, which was as follows:

“Lena, Jánuary 18th, 1892.
“I, Grover Robinson, have agreed to work for E. R. Hunt in the Morris-creamery under the following conditions: To- commence work when called upon, expecting that time to be May 1st, 1892, or sooner. I am to have the entire charge of the factory work, under the advice and supervision of E. R. Hunt. To do the work with one man to help, unless more milk than can be worked in two cheese vats is received. To do the work when it ought to be done, and not to be out nights, or attend dances or ball plays, or be away any. that will in any way interfere with the factory work, or that might be deemed so by E. R. Hunt. To avoid as much as possible boys gathering at the factory nights or Sundays. To have due diligence and proper care of the work. To receive twenty-eight dollars per month for each full month’s work; the whole number of days in each month to be worked for a month’s work. It is, however, understood that, if the firemen of Morris have a dance, I am to have the privilege of attending. Grover Robinson.”

We find no evidence that the defendant agreed to the terms of this written contract, although upon the trial it seems to have been assumed that that was the contract between the parties, and binding upon both. The plaintiff might have avoided his contract upon the ground of infancy, and have recovered the value of his services on quantum meruit. Whitmarsh v. Hall, 3 Denio, 375; Winters v. McMahon, 23 Wkly. Dig. 119. But such was not the theory upon which the case was tried. The plaintiff introduced the written contract in evidence, and when proof was offered as to the value of the services of cheese makers, and it was objected to upon the ground that the contract was in writing, and could, not be varied, the plaintiff’s counsel expressly stated that it was not for that purpose, and that the question was not asked with a view of at all affecting the amount the plaintiff was entitled to recover. An examination of the evidence and proceedings upon the trial discloses that the case was tried upon the sole theory that the contract signed by the infant plaintiff was binding upon both parties, and was the contract which existed between them. Such having been the theory upon which the action was tried, we should not now attempt to sustain the judgment upon the ground that the plaintiff might have recovered upon quantum meruit, and hence that certain evidence which was admitted was properly received, provided it was improper under the theory upon which the case was tried.

The only question that seems necessary to determine upon this appeal is whether it was error for the court to permit the plaintiff on the cross-examination of the defendant to prove the value of the services of experienced cheese makers in that locality. It may be that this evidence would have been admissible if the action had been tried upon the theory of the plaintiff’s right to recover on quantum meruit. But, be that as it may, as the case was tried upon . the theory that the written contract alone was to control, and, when the evidence was objected to, the counsel for the plaintiff expressly asserted that it was not for the purpose of affecting the amount of the plaintiff’s recovery, or to vary the written contract, or show a different one, we think the court erred in admitting such evidence. The specific question asked was: “Now, in 1892, in and about the vicinity of Morris, what was the regular price of cheese makers who took entire charge of the cheese factory, and assumed the entire responsibility of running a cheese factory and in manufacturing the cheese?” This was objected to, as “incompetent and improper; that the contract agreed upon is $28, in writing, and they can’t vary it.” The counsel for the plaintiff then stated, “It is not for that purpose at all,” to which the counsel for the defendant remarked, “It is incompetent and improper for any other purpose;” the plaintiff’s counsel replying, “It is not with a view of at all affecting the amount this plaintiff is entitled to recover.” The objection was thereupon overruled, and the defendant excepted; the court remarking during the controversy between counsel that the ruling was made upon the theory that it was not for the purpose of establishing the value of the plaintiff’s services. The defendant finally answered that the value of such services was $50 a month, the cheese maker boarding himself.

Assuming, as we think we must, that the parties had the right to try the case upon the theory adopted by them, it is quite obvious that the evidence was improperly admitted, and that the defendant’s exception was well taken. In Marsh v. Holbrook, 3 Abb. Dec. 170, it was held that in an action to recover compensation for services, if the complaint alleged, and the plaintiff at the trial solely relied on, an express promise to pay a specified sum, the defendants were not entitled to prove that the value of the services was less, although the complaint contained allegations appropriate to an action on quantum meruit. The doctrine of that case was fully recognized in Barney v. Fuller, 133 N. Y. 608, 30 N. E. 1007. It is a well-established rule of the law relating to appeals that an error in receiving incompetent evidence can be disregarded only when it can be clearly seen that it did no harm. Foote v. Beecher, 78 N. Y. 155; Green v. Disbrow, 56 N. Y. 334, 337; Carroll v. Deimel, 95 N. Y. 252, 256; Holcomb v. Holcomb, 95 N. Y. 316. As was said in Hutchins v. Hutchins, 98 N. Y. 56, 65, following the decision in Anderson v. Railroad Co., 54 N. Y. 334: “Illegal evidence that would have a tendency to excite the passions, arouse the prejudices, awaken the sympathies, or warp or influence the judgment of the jurors in any degree, cannot be considered harmless.” The only effect that the evidence in question could have had was to prejudice the jury by leading it to believe that the plaintiff’s services were of greater value than the price the defendant agreed to pay. We cannot say that this evidence was harmless. It follows that the judgment should be reversed.

Judgment and order reversed, and a new trial granted, with costs to abide the event.

MERWIN, J., concurs.

HARDIN, P. J.

The contract contained language indicating that plaintiff was to have entire charge of factory work. The words in the contract are, viz.: “I am to have the entire charge of the factory work, under the advice and supervision of E. R. Hunt. * •» *» Defendant’s evidence to the same effect did not need explanation; hence the irrelevant evidence was not needed to counteract or impair the force of defendant’s evidence as a witness, and the respondent’s excuse for the ruling fails to justify it. I therefore join in the opinion of MARTIN, J., for reversal.  