
    LEMP vs. STREIBLEIN.
    1. A promises B (who was going to Europe for his family) that if he would bring with him A’s son, (who lived at the distance of one day’s travel from' where the family of B resided) ho would pay him one hundred dollars, and pity the expenses oi his son ; B went ior the boy, but his mother refused to lot him leave;
    Held—That B being prevented from complying with his contract by the wife of A, could maintain indebitatus assumpsit for his services in endeavoring to get the child.
    2. Where the instructions given to tho jury contain the law applicable to the facts of the caso, and the cvid'Micc warrants the verdict of the jury, the supreme court will not sot it aside.
    APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.
    STATEMENT OÍ1 THE CAs'eI
    This was an action of indebitatus assumpsit for services and work and labor. At the trial of tho cause, the first witness for tho plaintiff proved that the plaintiff intended to g'o to Europe to bring over his family to this country, and the defendant promised the plaintiff that if the plaintiff would bring with him the defendant’s sou from Germany’, that tie the defendant would pay the plaintiff ono hundred dollars for his trouble, and the expenses for his son. The plaintiff did not bring the defendant’s son, although ho saw him at Eschwage two or three times, the boy’s mother refusing to lot him leave. The distance from Cassei, the place where plaintiff’s family resided, to Eschwage, was about eight hours walk. The plaintiff also offered in evidence a power of attorney from Lemp to Stroiblein, authorizing the plaintiff to take the boy and fetch him to America. There was some dispute between the witnesses as to the meaning of the word sutz fereim, ono testifying that it meant to fetch, including in it the idea of delivering, the other that it meant ilto convey.” The power of attorney also contained an agreement to refund the expenses of bringing the boy over. The defendant’s 'witnesses testified, that Streibloin told them that ho was going to Europe for his family.
    Upon the evidence, the defendant asked of th'e court the following instructions, to the refusal of which, and tho Overruling the motion for a new trial, the defendant excepts.
    The jury are instructed that under the evidence introduced by the plaintiff, be is not entitled to recover in this action.
    Tho plaintiff cannot recover in this action unless he shows that he has complied with the contract made with the defendant.
    If the jury believe from the evidence that the contract between the parties to this suit Was reduced to writing and signed by thé defendant, tho jury will find for tho defendant.
    If the jury believe from tho evidence that the contract between the parties was, that the plaintiff should bring and deliver to tho defendant, his son, then unless the plaintiff shows that he has delivered the defendant his son, or that he was prevented by the defendant from so doing, they will find for the defendant. All which instructions the court refused, and gave the following:
    If the jury believe from the evidence that the defendant specially promised the plaintiff to pay tile sum of one hundred dollars if the plaintiff brought and delivered to the defendant, his son, they will find for the defendant, provided the jury should believe from tho evidence that the personal expenses of the plaintiff in going to Germany and returning, are not the expenses contemplated by the writing given in evidence, and this depends upon the question whether the plaintiff went specially on the defendant’s business, or whether it Was merely incidental tb his own;
    To the giving of which instruction, and the refusal of those asked by the defendant, and the overruling tho motion fora new trial, the defendant excepted, and assigns the Samo for error.
    
      Whittlesey; for appellant.
    Can the plaintiff, when a special contract has been made, the terms of Which have not been complied with on his part, set that contract aside and sue in indebitatus aesumpsit on the common ‘counts; or must lie specially declare upon his contract ?
    Gibson, for appellee.
    The word íl zuzvfubem, ” was properly translated, and was so decided by the jury in giving their verdict. The action was properly brought. The power of attorney given in evidence was not á contract between the parties. It was a mere power to Streiblein to go for Temp’s son and bring him from Germany here, Streiblein could not be liable to any action for not fulfilling the power:
    There was conflicting evidence as to the object of Streiblein’s visit to Hesse Cassell, and the j ury decided that ho did not go there for L'emp’s son. This is evident from the amount of the verdict $75. Tiiis small amount could have been given only for Streiblein’s services in going for Lemp’s son from Hesse Cassoll to Eschwag'e, a small town about two day’s journey off. A journey to Europe coats as was proved several hundred dollars. From these fácts, I think it is clear that the Verdict was founded on the testimony, and not on the power of attorney.'
   Judge Birch

delivered the opinion of the court.

According to the statement which ha's been furnished in this case, the plaintiff was prevented from complying with his verbal agreement, by the interference of the defendant’s wife. Assumpsit, therefore, was the proper remedy.

Upon the other point presented, although the instructions given by the court, in lieu of those refused, was rather unperspicuously drawn, it cértainly did not present the case of the plaintiff in a more favorable point of view than was warranted by the contradictory state of the testimony—presented as above. The jury having found for him under such circumstances, to interfere with their verdict would be to run counter to the spirit of all previous decisions of this court upon similar questions. The judgment of the circuit court is therefore affirmed.  