
    Norment vs. Hull.
    Hull and Norment agreed that for the first year Hull was engaged in the employment of Norment in the erection of a cotton factory Hull should make his wages as low as possible, as Norment was to be at every expense and to receive no profits, and that after the factory went into operation Norment was to pay Hull according to the profits of the establishment: Held, first, that this did not amount to a special agreement, which should have been set forth in the plaintiff’s declaration as the measure of his compensation: secondly, that it did not constitute Hull and Norment partners.
    Elijah 0. Hull instituted an action of assumpsit against Nathaniel E. Norment on the 25th day of January, 1837, in the circuit court of Hardeman county. The declaration of Hull contained two counts: first, that Norment was indebted to him in the sum of one thousand seven hundred dollars for work and labor done, and being so indebted, in consideration thereof promised to pay him such sum when he should be requested: secondly, that Hull had bes towed care and diligence in and about the business of Norment, afld had done work and labor for him, all at the instance of Norment, and that in consideration of such labor, care and diligence, Normént agreed to pay him so much as such work and labor, care and diligence were worth, when requested, and that such care and diligence, work and labor were reasonably worth the sum of one thousand seven hundred dollars.
    The defendant pleaded non-assumpsit, and issue was joined.
    The cause came on to be tried before judge Read at the July term, 1838, and was submitted to the jury upon the proof. It appears that Normént, in the year 1833-, deter-* mined to put into operation, in the county of Hardeman, a cotton spinning factory, and that he, for this purpose, engaged the services of plaintiff, Hull, a cabinet workriian. Hull went to the State of Kentucky for the purpose of, purchasing the machinery, and also for the purpose of acquiring information in regard to the manner of putting the factory in operation and of conducting and managing it most sue** cessfully. Norment paid his expenses; Hull purchased thé machinery, brought it to Hardeman county, and superintended the erection of the factory house, the putting into operation of the machinery, and conducted the establishment. He was engaged in this business from April, 1833, till about the month of November, 1836. Norment furnished the capital employed, the hands engaged, the materials, timber, tools, and boarded Hull a portion of the time. The erection of the establishment cost about seven thousand dollars, and it does not appear that much profit, if any, was realized from the business during the time Hull was engaged. The machinery got out of order, and Norment was forced to send to Kentucky for the purpose of getting a workman to put it in repair, who stated that it was much injured for the want of a competent superintendent. There was testimony given in tending to show that Hull was incompetent to the task he had undertaken. The machinery was loosely put together, and the amount of cotton spun was not equal, in proportion to the spindles running, to the product of other factories, though the thread was well spun-.
    It appeared that the'wages of a competent superintendent of a cotton factory of the size of the one in question was from one dollar and a half to two dollars per day, and higher. - There was much testimony not necessary to he set out: only two witnesses spoke of the terms upon which Hull was engaged by Norment. Hull left Norment’s employment and called for a settlement; in reference to which a conversation took place which was detailed by the witnesses. They stated that Norment asked Hull if he had determined what he should charge him. Hull answered that he had not. Norment then asked Hull if it was not their contract that for the first year Hull should make his wages as low as possible, as he (Norment) was at every expense and received no profit during that year, and that after the factory went into operation Norment was to pay him according to the profits of the establishment? Hull agreed that such was the contract. Hull then proposed that Norment should pay him one dollar per day during the time he was engaged in constructing and superintending the factory. Norment having made a calculation, assented to the offer with some apparent reluctance, upon which Hull receded from his proposition except as to the first year, and claimed five hundred dollars per year for the balance of the time. This ended the conversation upon the subject.
    The court charged the jury that the plaintiff must recover, if at all, on the quantum meruit count; that the contract proved by the witnesses was, that for the first year the plaintiff was to make his wages as low as possible, and that after the factory went into operation his wages should be increased in proportion as the profits of the establishment would justify; that this contract contemplated that the plaintiff' was to have low wages under any circumstances, and that they should, without taking into consideration the profits of the establishment the balance of the time, enquhe what was a reasonable compensation for his services the balance of the time. The court further charged the jury that if plaintiff reported himself competent to superintend the establishment and proved incompetent, yet, unless he thereby deceived and defrauded the defendant, the defendant must take the consequences.
    The defendant’s counsel requested the court to charge the jury that unless the proof showed them what proportion of the profits plaintiff was to receive according to the contract, they could not find for him. This the court refused to do, and charged the jury that they should allow the plaintiff a reasonable compensation without regard to the profits. The jury rendered a verdict for the plaintiff for the sum of three hundred and thirty-eight dollars for the first year, and at the rate of five hundred dollars per annum for the balance of the time, allowing the defendant a credit of six hundred and eighty-six dollars paid to the plaintiff.
    The defendant, by counsel, moved the court to set this verdict aside. The motion was overruled. Motion was made in arrest of judgment and overruled, and the defendant appealed in error to this court.
    
      M’Clanahan and Brown, for plaintiff in error.
    
      Bailey, for defendant in error.
   Reese, J.

delivered the opinion of the court.

The question for our decision arises upon the effect of the evidence given on the trial of the cause by two of the witnesses for the defendant in the court below, and upon the. charge of the court as to that evidence. The testimony of both these witnesses was in substance that the defendant, Norment, asked plaintiff if he had determined what he would charge him for his services, who replied in the negative. The defendant asked the plaintiff if it was not their contract that for the first year the plaintiff should make his wages as low as possible, seeing that defendant was at every expense and received no profit during that year, and that after the factory went into operation the defendant was to pay the plaintiff according to the profits; that to this statement the plaintiff assented. The plaintiff then proposed that he should be paid a dollar per day during the time he had been engaged in constructing and superintending the factory. Defendant having made a calculation of the amount, assented to the offer with apparent reluctance; upon which plaintiff receded from his offer except as to the first year of his services, and. claimed five hundred dollars a year for the balance of the time daring which he continued in the service of the defendant,

As to the effect of the testimony quoted above, it is insisted here for the benefit of the defendant in the court below: first, that it constituted plaintiff and defendant partners in the factory to be built, the one contributing capital, the other labor and skill; secondly, or at the least, that it amounted to a special contract and agreement, which should have been set forth in the declaration as the ground of the plaintiff’s action, who should not have been permitted to recover upon the common count for a quantum meruit.

As to the first position: that the plaintiff was the hireling apd not the partner of the defendant, is apparent from the conversation of the parties, as proved by those two witnesses, and from all the testimony in the cause. As to the second position, that the agreement was special, we are of opinion that the conversation of the parties, as proved by those two witnesses, does not establish a special agreement. His wages were to be as low as possible for the first year, and after that according to the profits, that is, considering that during the first year, by the increasing expenses without the reception of profit, the means of the defendant would be limited, he would expect the plaintiff to be low in his charges, and after thatthe plaintiff might expect his liberality to increase as the reception of profit might improve his means. Here is no special or fixed or ascertainable rate of compensation. How low are the wages to be for the first year? So low as the plaintiff can reasonably afford to work. How high afterwards? So high as the plaintiff can reasonably afford to pay. How low would the circumstanoes of the plaintiff justify him in working? How high would those of the defendant justify him in paying? It is obvious that these constitute proper subjects of inquiry for the jury. The conversation proved, therefore, does not amount to a special agreement, but was only an inducement to the agreement. The legal rule, therefore, and the only one under the circumstances controlling the measure of the plaintiff’s compensation, is that which, in the absence of a special agreement, directs that for his work and labor he shall receive what, from its nature and value, he reasonably merits. It is obvious, in this view of the case, that the error of the circuit judge, if any, in the statement of the proof and in the rule of compensation by him deduced from it, was an error of which the plaintiff below might complain, but of which the plaintiff here cannot. The rule prescribed by the circuit court to the jury, that from the contract proved, the plaintiff would be entitled to low wages during the first year, and to reasonable wages afterwards, cannot be complained of by the defendant below, either as to the assumption of fact upon which the rule was based or as to the rule itself. Of both, perhaps, the plaintiff below might have complained, for the evidence would have authorized a verdict for a larger amount.

Let the judgment be affirmed.  