
    Stephen L. Constable, Resp’t, v. Rufus Lefever et al., App’lts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November 22, 1892.)
    
    1. Services—Evidence.
    In an action for work, labor and services performed for defendants, neither the complaint nor answer contained any allegations as to an agreement as to the price to be paid. Plaintiff testified that he told defendant what he would work for, but that defendant said he could not afford to pay that; that he thought it should be for a lower sum, which plaintiff refused to take. Defendant testified he was to pay the lower sum. Bold, that the referee was justified in refusing to find that there was an agreement fixing the price, and in admitting evidence of the value of plaintiff’s services.
    3. Rexebence—Evidence.
    Where evidence as to a particular matter has been given by both parties, it is within the discretion of the referee whether to allow one of the parties to go over the matter again.
    Appeal from judgment In favor of plaintiff, entered upon report of a referee.
    
      Lawton & Stebbins (S. L. Stebbins, of counsel), for app’lts; D. W. Sparling ( William Lounsbery, of counsel), for resp’t.
   Putnam, J.

The complaint alleges a cause of action for work, labor and services performed by plaintiff for defendants, as co-partners, for which they became indebted to him in the sum of $343.50 ; that only $166.42 had been paid thereon, leaving a balance of $177.08 due the plaintiff.

The answer admitted that plaintiff had performed labor for defendants as co-partners, but denied that the indebtedness therefor was the amount stated in the complaint, and also set up two small counterclaims, which were allowed by the referee. The referee found due the plaintiff $141.85.

Neither the complaint or answer has any allegation indicating whether or not there was any agreement between the parties as to the price per day plaintiff was to receive for his services.

The questions to be considered by us are, whether the exceptions taken on the trial by the defendants, or any of them, required a reversal of the judgment.

The exceptions to the ruling of the referee allowing the value of plaintiff’s services per day to be shown were properly overruled. The referee, perhaps, could have determined from the evidence that a contract was made between the plaintiff and defendants as to the price plaintiff was to have for his work, but the testimony was such that he could also properly reach the conclusion that the minds of the parties never met as to the price plaintiff was to have. As plaintiff testifies, the conversation with defendants preceding his employment was as follows: “ I made the agreement before I commenced work with Rufus Lefever; I told him how much I wanted a day; I told him I wanted $1.50 per day; he said he couldn’t afford to pay me that; he told me as we were going out the door to take the team and go to work.”

On cross-examination he also testified: “ Then I told him I would draw the lime at a cent a barrel or at $1.50 per day by the day; he said he wouldn’t give me a cent a barrel, that he thought it ought to be done for a while at $1.25 per day; I said I wouldn't do it for less than $1.50; when we were walking out he told me to take the team in the morning; I did so.” Defendant testified he was to pay $1.25 per day. This testimony indicates that no-sum was agreed upon. It does not show a meeting of the minds of the parties as to the price to be paid. I, therefore, think that the receipt of the evidence as to the value of plaintiff’s services during the time he worked for defendants, and the referee’s refusal to find that there was an agreement fixing the price for such services per day, was not error.

I also conclude that the referee properly sustained the objection to the question, “Did he then promise to pay you $1.50?” The conversation between the parties at the time of the employment of plaintiff had been drawn out by plaintiff, and had also been detailed in defendant’s examination of the witness before this question was asked, and it was within the discretion of the referee whether or not to allow the defendants to go over the matter again. It was also not error to exclude the evidence offered as to the plaintiff’s “ being out with the Knights of Labor.” This proposed evidence was entirely immaterial, and its exclusion could not have influenced the result. The referee did not err in refusing to find as a fact the payment of the five dollars as requested by the appellants, for the reason that the defense of such payment was not asserted in the answer. I also think the referee, for the reasons before stated, was justified in declining to find as requested by defendants, that shortly before plaintiff commenced working for defendants they agreed upon a price per day and that such price was $1.25. I construe the referee’s note of “not found,not as a refusal to pass upon the requested finding, but a-refusal to find as requested.

For reasons also above stated, I think the referee did not err' in holding that no agreement was made between the parties as-to the price plaintiff should receive for his services. Whether such an agreement was or was not made was a question of fact for the referee to decide. Certainly the testimony given by the plaintiff did not show any meeting of the minds of the parties as to the price, and the referee, relying on plaintiff’s testimony, could very well reach the conclusion he did.

The evidence tends to show that plaintiff performed 230 days work for the defendants, as found by the referee. The plaintiff testified to that effect, and the referee, believing his statement, could find as he did. Also, I do not discover that defendants on the trial took the position that some part of the work performed by the plaintiff was done for Lefever alone, and, lienee, was not a legal claim against both defendants. Hence, such an objection to the recovery could not be entertained now.

The judgment should be affirmed, with costs.

Mayham, P. J., and Hebbiok, J., concur.  