
    Likens v. Milliner.
    
      Wednesday, December 15.
    ERROR to the Hancock Circuit Court.
   Perkins, J.

John Milliner sued Leonard Likens before a justice of the peace on the following cause of action-:

“Leonard Likens to John Milliner, Dr. To work and labor from the 12th day of March, 1849, to the 7th day of June, 1849, three months, at 10 dollars per month, $30.00.”

The cause went by appeal to the Circuit Court. In that Court the cause was tried by a jury upon the general issue, and the plaintiff recovered 27 dollars and 30 cents. A motion for a new trial was overruled.

The plaintiff proved the time he worked for the defendant and the value of his labor. The defendant, to defeat a recovery by the plaintiff, then undertook to prove that the work performed by the plaintiff, Milliner, was done under a special contract for one year’s service, and that said Milliner left his, defendant Likens’s, employment, without cause, before said year expired. The evidence upon these points was substantially as follows:

'Abel Likens, a son of the defendant, testified that the contract between his father and Milliner was, that Milliner was to work a year at 10 dollars per month, if the two could agree together in two or three weeks’ trial.

Leonard E. Likens, another son of defendant, stated that Milliner was to work a year, if said Milliner and his (witness’s) father could agree for one week.

William A. Eranklin heard Likens tell Milliner, after he left, that if he did not come back and work his year out, as he had agreed, he would not pay him for what he had done. Milliner replied that he would not work for any man that would “jaw him,” and that he would sue Likens for the time he had worked for him.

Offutt stated that he heard the parties in conversation the Saturday before Milliner commenced working for Likens, when the latter said he wanted a hand to work a year; and the former replied that he would work a year, if they could agree.

Miss Milton lived at Likens’s. Likens used frequently to scold and complain of Milliner about small matters.

Kauble talked with Likens a week after Milliner had commenced working for him. Likens said Milliner was working on trial; was to work a year if they could agree; there was some time fixed, he thinks, for the trial; don’t know how long.

On this evidence the Court instructed the jury as follows :

“The sole question for the jury to try is this, viz.: was the plaintiff hired by the defendant for a year, or was the hiring on trial, or by the month as long as the parties could agree?

“If the hiring was by the month for as long as the parties could agree, the plaintiff is entitled to recover for every full month he served. If the hiring was for a year, there is nothing in the evidence to exonerate the plaintiff from a full performance of a year’s work, and, consequently, he cannot recover.

“ If the work was commenced on trial, the trial completed, and work for a year understood by the parties to be commenced, then it is a case of hiring by the year; but not so if the trial was not completed.”

The jury, as we have said, found for the plaintiff, and the Court, hearing the trial, refused to set aside the verdict.

The instructions were certainly as favorable to the defendant below as the law would justify, perhaps more so, though as to this we need express no opinion. The jux-y, over such instructions, found for the plaintiff, and the Court who heard the case, and could judge better than we can of the credit to be given to the several witnesses, refused to disturb the verdict.

T. D. Walpole and R. L. Walpole, for the plaintiff.

R. A. Riley, for the defendant.

We think this Court would not be justified in pronouncing that refusal erroneous.

Per Curiam.

The judgment is affirmed, with 5 per cent, damages and costs.  