
    Dickey v. Greenleaf.
    1. In an action against a guarantor to recover a certain amount as compensation for services alleged to have been guaranteed in a contract to serve for a certain percentage of tbe profits of the business, wherein the guaranty is denied, testimony in chief as to the customary price of such services is not admissible.
    3. But where a substantial conflict arises in a case as to the amount agreed upon, whereby such testimony becomes admissible, it must be confined to such price at or about the time the contract was made.
    Error to the District Court of Eranklin county.
    The petition in the original action was filed by Greenleaf & Co. against John Dickey, and contained two causes of action : 1. Upon an account current between the parties during the year 1876, wherein a balance of $293.61 was claimed to be due to plaintiffs. 2. Upon an account alleged to have been stated between the parties on tbe 1st day of January, 1876, for the sxxm of $1,486.50.
    To each of these causes of action defendant interposed an answer in which the facts therein stated wex’e denied generally; and by way of cross petition alleged, in substance, that the matters complained of in the petition originated in an expi’ess contract between the parties, whereby the plaintiffs, as wholesale merchants, employed the defendaxxt, as a traveling salesman, for the years 1874, 1875 and 1876, and for his services agreed and px’omised to pay hixn one-eighth of the net px-ofits of their business, and guaranteed that such compensation should eqxxal, at least, the sum of twenty-two hundred and fifty dollax-s per year. He also alleged that he had perfonned said contx-act on his part, and that his salary for said yeai's amounted to the sum of $6,750.00. He also alleged that during said period he had deposited with the plaintiff a further sum of $946.47, and that he had received on account of said salary and deposits the sum of $5,163.76, and no more. Wherefore he prayed for a judgment against the plaintiffs for $2,526.68.
    The plaintiffs, by way of reply, admitting the employment and service of the defendant, denied the contract as, alleged in the cx’oss-petition, and denied that the compensation to the defendant for his services, to arise from said one-eighth of the profits, should, at least, equal the suxn of $2,250.00 per annxxm. They also alleged, that all matters and dealings between the parties, including his compensation for 1874 and 1875, and all deposits made by him, were fully settled at the end of the year 1875, x’esulting ixx finding a balance in their favor of $1,486.50, as stated in their second cause of action.
    The trial x-esxxlted, in the coxxrt of common pleas, in a verdict and jxxdgmeixt in favor of plaintiffs for $1,497.55.
    On the trial the followixxg bill of exceptions was filed by the defendant:
    “ Be it remembered, that on the trial of this case to the juiy, the plaintiffs, to maintaiix the issue on their part, introduced evidence tending to prove the facts alleged ixx their petition and rested their case; and thex’eupon the defendant introduced .evidence tending to prove the issues on his part, and to prove the facts stated in his answer and cross-petition and amongst other things introduced evidence tending to prove: That the plaintiffs were wholesale dealers in dry-goods and notions, in the city of Columbus, Ohio, for a number of years prior to January, 1874, and have since continued and still continue in said business.
    “ That the defendant had been employed by the plaintiffs as a traveling salesman for several years prior to January, 1874, and had been paid for such services, stated yearly salaries, which had been increased from time to time, and that the defendant received for his services in that behalf for the year 1873, $2,250 ; that on January 1, 1874, the plaintiffs, by John Greenleaf, who was the member of the firm whose business it was to make contracts with its employés, entered into a contract with the defendant, by which it was agreed that the defendant should continue to serve the plaintiffs as a ti’aveling salesman for the year 1874, as formerly, and that the plaintiffs should pay him for such services one-eighth part of the net profits of their business, and guaranteed that such eighth part of profits should equal the sum that the defendant received for his services in 1873, to wit, $2,250, so that in no event should the defendant receive for such service less than $2,250. That the defendant continued in the service of the plaintiffs under that agreement during the years 1874 and 1875, the same arrangement having been renewed in January, 1875 ; that the same arrangement was continued for 1876, except that the defendant was to receive one-sixth of net profits, instead of one-eighth, and was only to draw $1,200 on account during the year, and the defendant, for the purpose of further proving the contract thus entered into between the plaintiffs and himself, January 1, 1874, amongst other things, offered to prove that the market value of the services of the defendant as traveling salesman on January, 1874, was $2,250 per year, and to that end asked the defendant the following questions :
    “Were you acquainted with the market value in Columbus, Ohio, on the 1st of January, 1874, of such service as that rendered by you for plaintiffs ? Whereupon the counsel for the plaintiffs objected; and the court sustained the objection, and refused to allow the question to be put or answered; to which ruling of the court the defendant excepted, and thereupon counsel for defendant asked him the following questions:
    “ What was the market value of your services per year, as traveling salesman in Columbus, Ohio, on January 1, 1874? Whereupon counsel for the plaintiffs objected, and the court sustained the objection, and refused to allow said question to be put or answered ; to which ruling the defendant excepted.
    “And the defendant having rested, the plaintiffs in rebutter introduced testimony tending to show, that on January 1,1874, the plaintiff and defendant entered into a par*ole contract by which it was agreed that the defendant should receive for his services for the year 1874, one-eighth part of the net profits of the plaintiff’s business, to be ascertained in the manner stated in the petition. That the contract was renewed on the same terms for the year 1875, and on January 1, 1876, a new contract was made by which the defendant was to receive for his services for the year 1876, one-sixth part of the profits, which profits, the plaintiffs guaranteed, should amount to $1,200.' And the jury having returned a verdict for the plaintiffs, the defendant, by his counsel, moved the court to set aside the verdict, and grant him a new trial for reasons on file, which motion was overruled by the court, to which ruling the defendant, by his counsel, excepted, and moved the court to sign and seal a bill of exceptions to said ruling and make the same part of the record in this case, which is accordingly here done.”
    The judgment of the common pleas court was affirmed in the district court.
    
      J. T. Holmes and F. W. Wood, for plaintiff in error :
    That the testimony offered and rejected was pertinent and competent, is apparent from the nature of the controversy, and as the contract price agreed upon January 1, 1874, became a matter to be established by evidence, and as there was a dispute in the premises touching its terms, the value of the defendant’s services in the market at the time, was material to be shown, as reflecting upon the reasonableness of the contract, as claimed by him. That the court erred in refusing such testimony, is apparent from authority, as. well as reason. See Allison v. Horning, 22 Ohio St. 138; Kidder v. Smith, 34 Vt. 294; Kimball v. Lock, 31 Vt. 683; Bradbury v. Dwight, 3 Met. 31; Swaim v. Cheney, 41 N. H. 232; Harrington v. Baker, 15 Gray, 538, 540; Moore v. Davis, 49 N. H. 45; Darling v. Westmoreland, 52 N. H. 401.
    
      Lorenzo English, for defendant in error,
    claimed that the testimony rejected, was properly rejected, for the reason that the reasonableness of the contract was not in issue, but the question was, was there a contract at all ? And, further, the market value of the services of defendant did not, and in the nature of things could not, tend to prove the specific guaranty of the plaintiffs, as alleged by the defendant, and insisted that Allison v. Horning, 22 Ohio St. has no application.
   McIlvaine, J.

The rejection of testimony offered by defendant below, as shown by the bill of exceptions, is the principal matter relied on for error.

This testimony was offered to prove the express agreement alleged by the defendant to have been made between the parties on the 1st of January, 1874, in which, as he claimed, it was stipulated that his salary, to wit — one-eighth of the profits of the business — should equal, at least, twenty-two hundred and fifty dollars per annum. This stipulation was denied by the reply. The issue made by the pleadings was not as to the amount guaranteed, but as to any guaranty at all.

TJpon such an issue, is testimony as to the “ market value” or usual price of such services admissible in chief ? Such testimony, in our opinion, does not tend, in the remotest degree, to prove the existence of an express agreement. It is said that such testimony shows the reasonableness of the alleged agreement. The point in issue was not the reasonableness of the alleged agreement, but its existence. That a supposed agreement would be reasonable, does not afford a scintilla of evidence that it was entered into by express stipulations.

We concede that there is a class of cases in which the doctrine as announced by this court in Allison v. Horning, 22 Ohio St. 138, is fully established, namely: “In an action to recover the amount due on a contract for work, where the testimony is conflicting as to the price agreed upon for the work, it is competent to show the value of such work at the time the contract was made, as tending to show what the agreed price, was.”- In that case, such testimony was admitted, but as it did not appear to have been admitted in chief, the judgment was affirmed on the ground that error must appear on the face of the record. Judge Day, in delivering the opinion, said: “ It does not appear that the evidence was given in chief for the purpose of proving the contract price, which would have been inadmissible; but for aught that is shown by the record, it was offered to rebut the evidence introduced by defendant to prove that the contract price was less than that claimed by plaintiff.”

But in the case before us, it does appear from the bill of exceptions that the rejected evidence was offered in chief by defendant below in support of the agreement set out in his cross-petition, and therefore inadmissible according to the rule stated by Judge Day, supra.

But another feature in the case before us appears on the record, which is worthy of remark. The defendant, in offering testimony in chief in support of his cross-petition, gave evidence tending to prove that the contract for his services in the year 1876 differed from the previous contract in this, that his compensation was to be one-sixth of the profits of the business instead of one-eighth, which was guaranteed would be at least $2,250. . And it further appears, that after the testimony of the defendant to prove the value of such services on the 1st of January, 1874, had been rejected, the plaintiff gave testimony-to the effect that “on the 1st of January, 1876, a new contract was made, by which the defendant was to receive for his services for the year 1876, one-sixth of the profits of their business, which the plaintiffs guaranteed should amount to $1,200. Thus a case arose upon the proofs, different from that made by the pleadings, in which the only conflict between the pai’ties was as to the amount of compensation guaranteed to the defendant for his services for the year 1876. The defendant, claiming under his testimony that the amount was $2,250.00— the plaintiffs, that it was only $1,200.00. A case clearly within the doctrine of Allison v. Horning, supra.

It must be observed, however, that the testimony previously offered by defendant, and properly rejected by the court at the time and under the circumstances of the case when offered and rejected, was not again tendered after this new phase of the case was developed by the testimony; hence, the rejection of the testimony, being proper at the time it was ordered, did not become erroneous by reason of the subsequent change in the status of the case.

And again, if the same testimony had been tendered after the controversy was reduced to a mere conflict in testimony as to the amount of the agreed guaranty, it should have been rejected, for the reason that it related solely to the value of such services on the 1st of January, 1874, whereas, under the rule as stated in Allison v. Horning, supra, it should have been confined to the value of such services at the time the contract was made, to wit: at or about the first of January, 1876.

We find no error in the record for which the judgment below should be reversed.

Judgment affirmed.  