
    Peter McQueen vs. Theodore D. Bostwick.
    Where the verdict of a jury is against the preponderance of the testimony, a new trial should be granted. '
    In this case, which was an action brought by a clerk against his employer for wages, and in which the jury found for the plaintiff, the court review the testimony, and come to the conclusion that the verdict was against the weight of evidence.
    ‘ In error from the circuit court of Marshall county; Hon. Hugh R. Miller, judge.
    Theodore A. Bostwick sued Peter McQueen upon an account for the sum of $850, for his services as clerk from March, 1842, to December, 1845. The plea was non-assumpsit. On the trial, D. P. Gilbert, a witness introduced by plaintiff, testified that the plaintiff was in the service of defendant from some time in the year 1842, till about the middle of December, 1845, some three or four years. Witness heard defendant say that he would as soon have the plaintiff as a clerk as any other clerk he ever had had. Plaintiff, whilst he lived with defendant, was generally in feeble health, laboring under asthma or phthisic, and that when he left defendant he was sent by defendant to witness (who is a physician) to be treated for dropsy of the. chest, which disease he then had. That witness cured him, and his bill was settled by defendant. That plaintiff, whilst he lived with defendant, though weak, small, and feeble, was able to hold a quill and measure a yard of tape.
    Thomas Young corroborates testimony of other witnesses as to time of service, and further says, plaintiff was frequently sick. At the request of defendant, witness slept in the store with plaintiff, who was liable to sudden attacks of illness, and then required attention. When defendant was at home, he was usually in the store, and plaintiff generally had but little to do, and when defendant went off after goods, Mr. Cummings or Mr. Blackburn was employed to stay in the store with plaintiff. Witness had heard defendant say that plaintiff was the best ■clerk he had ever had in obeying him, and attending to what he told him to do. Plaintiff was boarded by defendant, and was decently clad.
    B. Milton, corroborates testimony of other witnesses as to health. The services of a good competent clerk then were worth $200 per year, exclusive of clothing; after plaintiff left defendant, witness offered to employ plaintiff as a clerk at $125 per year and board, but out of this sum plaintiff would have to pay his own medical bills, and furnish his own clothing, which probably would have cost $60 per year.
    John Caruth testified, that he supposed the plaintiff was seventeen or eighteen years old, when in 1842 he commenced living with defendant.
    Witnesses introduced by defendant.
    Ch. Cummings. — Witness lived with defendant as a clerk from 24 November, 1842, till 1 May, 1843. Plaintiff was then living with defendant, who had on hand a small remnant of a stock of goods, which was soon afterwards replenished by a small supply. While witness remained with defendant, plaintiff was-afflicted with phthisic or asthma, and occasionally had several paroxysms, at which time medical aid was necessary, and defendant either administered medicine for his relief, or called in a practising physician. When able, during the time witness staid with defendant, plaintiff disposed of goods in a small way, but his size was uncommonly small, and he could not reach above the lower shelves. Plaintiff was inexperienced, and such was the feeble state of his health, that his services were unimportant. Defendant was careful of the health and morals of plaintiff. Plaintiff did not-keep the books. While he remained in the store, plaintiff frequently told witness that he was living with defendant for his victuals and clothes, but intended to ask defendant to give him wages next year. In November, 1844, after witness had left the service of defendant, witness asked plaintiff if he had changed his contract with defendant, and he replied he had not. Daring the time witness lived with defendant, plaintiff at various times took money out of the store drawer for his private purposes, of which no entry was made or account taken. Defendant furnished plaintiff with decent apparel, of which no account was taken.
    A. Lockhart testified, that in 1844 he was in defendant’s store, and defendant was absent, and witness asked plaintiff what wages defendant was giving him, and plaintiff replied, “none.” Witness then said to plaintiff, “I expect McQueen will set you up in some kind of good business after a while,” to which plaintiff replied, “I do not know, but expect he will do what is right.”
    Several other witnesses testified that the plaintiff was feeble, and very small, and unable to do much work, and that he was kindly treated and decently clad by defendant; that when sick, defendant furnished medical aid and servants to wait on him; that plaintiff was subject to paroxysms which prostrated him so that for several days he was unable to attend to business.
    Morton testified, that in 1842, plaintiff was about the size of a ten or eleven years’ old child.
    Therrell stated that plaintiff told him that defendant always allowed him expending money when he went out.
    McClay testified, that he made clothing to the amount of $50 or $60 per annum for plaintiff, for which defendant paid him. There was no charge on defendant’s books against plaintiff.
    John Walker, a merchant, testified that it was a custom among the merchants at Holly Springs, taking into their service young men unacquainted with the mercantile business, to allow them nothing more than board and clothing for the first year or two, however active and able-bodied they may be. The services of a good clerk were worth from $200 to $500 per year. Plaintiff commenced staying with defendant between the 15th and 20th of April, 1844; he was fourteen or fifteen years old.
    
      James Dismukers states, that he does not recollect more than one or two' severe attacks which kept plaintiff confined more than one or two days. One attack lasted about one week or ten days. He attended to McQueen’s business faithfully, and with industry, when able. His health improved considerably after the first twelve months, until a short time before he left Mr. McQueen. After the improvement of his health, he executed defendant’s business with as much fidelity and industry as any clerk could do. When he left he was a good salesman, and was well qualified. When he first came he had little or no experience. With regard to his services the first year, they were worth only his maintenance; the next two years they were worth $100 or $150.
    - Considering plaintiff’s health, age, and the indigent circumstances of his mother, I should consider it an act of charity to take him and raise him.
    The jury found for plaintiff the sum of $407. The defendant moved for a new trial, and on its refusal sued out this writ of error.
    
      Charles Scott, for plaintiff in error.
    
      John W. C. Watson, for defendant in error,
    cited 3 How. 219; 4 lb. 338; 7 lb. 340.
   Mr. Justice Thacher

delivered the opinion of the court.

This is an action of indebitatus assumpsit instituted by Bost-wick against McQtieen for his services as clerk, or assistant in the latter’s store, from the 27th of March, 1842, to December 17th, 1845. The jury found a verdict for the plaintiff below in the sum of $407.

The plaintiff proved upon the trial that he was employed in the store of the defendant during the time stated in the account; that the defendant spoke favorably of him as a clerk, especially in regard to his attention and obedience to his directions, and proved also the usual prices paid for clerks and assistants in stores in that place.

The proof adduced by the plaintiff to sustain his action was exceedingly meagre. He introduced no witness to establish either the actual services which he rendered to his employer or their actual value. The finding of the jury could have been based alone upon a few complimentary remarks of the employer, and the price paid to others for services as clerks.

On the other hand, it was shown by the defendant’s many witnesses that the plaintiff, besides being very young, was of small size, feeble in strength, and afflicted with ill health; that his services were of no great value, and that his employer supplied him with fitting clothes, food, and medical attention during the time he was in his employ. It is almost conclusively shown by the plaintiffs own admissions, that the return for his services was to be but his support and maintenance.

Surely the preponderance of the evidence in this case is against the finding; for, upon a full view, it would seem that the defendant has been made to pay for his kindness to one in straitened circumstances and bad health, who has failed to establish any value for his services except by vague and unsatisfactory inference.

Judgment reversed, and new trial awarded.  