majority">Carpenter, J.

(after stating the facts). 1. The

first question for consideration arises from the contention of defendant’s counsel that recovery should not have been permitted upon the common counts'in assumpsit. We do not think this question a doubtful one. Under the testimony in this case, plaintiff had performed certain services for defendant for which he was entitled to be paid money. Even if it were true, as defendant contends, that plaintiff was bound to stay until April. 1, 1904, he would, none the less be entitled to recover, subject to a deduction for failure to perform his contract, and this recovery could be had under the common counts in assumpsit. Allen v. McKibbin, 5 Mich. 449; Bush v. Brooks, 70 Mich. 446.

2. It is insisted that plaintiff could not recover because he did not perform the burden resting upon him of proving that he was a faithful servant. Indeed, it is urged that his testimony respecting the sale of the crops and the application of a portion of the proceeds upon his own, *92claim proves his lack of fidelity. It is not true that there rested upon plaintiff the burden of proving fidelity. When the services of a servant are accepted and received, as in this case, the burden of proving the contrary rests upon his employer. Nor can it be said in this case that the testimony of plaintiff negatived his fidelity to his employer. The sale of the crops and the application of the proceeds were, under the circumstances disclosed by this record, presumably in accordance with the contract of employment. It is to be inferred that both parties intended that course to be pursued.

The point is also made that there were some items which plaintiff improperly failed to credit to defendant. When these were brought to his attention, plaintiff admitted his error and said they should be credited. This does not justify our saying as a matter of law that plaintiff was lacking in fidelity.

3. Before the altered relations between the parties to this suit, plaintiff had done some work for other people, for which he was paid a certain amount of money. Defendant insisted that he should have credit for this money. The trial court denied this and held that defendant should not be charged with plaintiff’s time while he was earning this money. It does not appear from the testimony that any loss occurred to defendant in cqnsequence of plaintiff’s absence while working for others. Under these circumstances, we think the rule applied by the trial judge the correct rule.

4. Plaintiff was asked this question:

“Have you made an estimate as to what had been sold off the farm during the year that you were there, and the value of what remained to be sold as the products of the farm, what it would yield for that year, and as to how much it would amount to ?”

Defendant objected, upon the ground that this was immaterial and incompetent, and the witness answered, “ something over $1,600.” We do not think the ruling of the trial court erroneous. If the jury had believed *93defendant they would have had occasion to use this testimony, for, according to defendant, plaintiff’s compensation depended upon the good results produced. Defendant cannot complain because plaintiff introduced testimony which would be needed in the event of his being credited as a witness.

Other complaints are made, but they disclose no reversible error, and their discussion would be of no service to the parties or to the legal profession.

The judgment is affirmed.

Ostrander, Hooker, Moore, and McAlvay, JJ., concurred.

Citation profile

Relationships

How this case has been treated — in progress