
    James Scott against Thomas Baldwicke.
    In an action for géB?S’a qmt TZZÍ'S.t the overseer, but w,°indu2flljuS’the^¡reum? stances, find a verdict not to be disturbed, as they may have taken íd?o efttateZmeruit.
    
    This was an action brought to recover a year’s ° , ^ wages as an overseer. The declaration contained two counts : i st, For work and labour as # an overseer; 2d, For a quantum meruit. The plaintiff proved that he was employed as an, r , r J overseer by -the defendant, who, on his part, -* ,¶ . ¶ .1 , i . ,1 proved, that whilst he was gone to the springs, ° JL 0 the plaintiff took his wagon and team, and the driver, xrom another plantation ox the deieridanrs, on which there was no overseer, and carried a load of peaches to Charleston, where he sold them: the defendant, therefore, contended, that he had violated his agreement with him, and was not entitled to any remuneration for his services : and to this point he produced several planters, who declared that the conduct of the plaintiff was so unjustifiable, that had he been in their service they would have dismissed him. The plaintiff replied, in evidence, that the mother of defendant was living on the plantation at the time he took the wagon and team to town; but as she was now dead, he was not permitted to show by evidence that, she had ordered him, or had consented, on the part of the defendant, that he should convey the páaches to town, nor what had become of the money which hé had received for them, as it would only have been hearsay evidence. The Jury found for the plaintiff 120 dollars. This motion for a new trial is, therefore, now made, because the obligation in such contracts, on the part of the employer, to pay, arises on a precedent obligation on the part of the overseer to discharge his duty, and such flagrant misconduct as is proved in this case amounted to a recision of the contract.
   The opinion of the Court was delivered by

Mr. Justice Grimke.

I think the motion ought not to prevail; for as all the circumstances were left to the Jury, and they have decided upon it, I should not wish to meddle with the verdict, as it does not appear that any gross injustice has been done thereby. In the first place, it did not appear that the defendant turned the plaintiff off imihediately on his return to his plantation; and if he did not, it would seem that he himself did not consider the conduct of the plaintiff as totally inexcusable; and 2dly, It did not appear that the plaintiff was entirely regardless of his duty in other respects as an overseer, for no other complaint of misbehaviour was proved against him except this trip to Charleston: and 3dly, It does not appear for what length of time of service the verdict was given, as it was founded on the quantum meruit, and the Jury might, from the smallness of the sum allow ed for a year’s wages, have deducted what they thought a reasonable compensation to' the defendant, for the use of his team, hire of his driver, and the sum produced by the sale of the fruit. The motion müst, therefore, be discharged.

CokocJc, Cheves, Gantt, Johnson, and JVolt, J. com curred.  