¶1The declaration in this case contains a special •count on a contract between the plaintiff, when fifteen years of age, and Enos Morse, of whom defendant is administrator, whereby it was agreed that plaintiff should work for said Morse until he became of age, living in his family and being supplied with clothing and with schooling in the winter, and at the end of the time should receive a suit of •clothes, a horse, and a watch. Breach, that the schooling was not furnished as agreed, but that instead thereof plaintiff was kept at work in tlie winter season. The, declaration also contained the common counts.
¶2On the trial the plaintiff proved a verbal contract to the effect of that specially declared upon. This was void under the statute of frauds, but no objection appears to have been taken on that ground. lie also gave evidence tending to show that he did not have the schooling agreed upon, but was kept at work. -The circuit judge instructed the'jury that, under the evidence, if they believed it, the plaintiff was entitled to recover the value of the labor performed by him while he should have been in school; and he had a verdict and judgment on this theory.
¶3*522Under the special count it is manifest that the value of the labor could not have been the proper measure of damages. Plaintiff sued for the loss of schooling, and was entitled to recover, if anything, what he was damnified by the loss, and not what the plaintiff had made his breach of contract worth to himself. But it does not appear that any one suggested to the j udge the true rule of damages.
¶4The case then sxems to be that the plaintiff recovered on a void contract and upon a wrong rule of damages, and that these specific faults were not pointed out in the circuit court. But it also appears, as we think, that plaintiff on the evidence was entitled to recover what was awarded to him under the common counts.
¶5On the theory of the facts which was submitted to the jury the plaintiff has received the agreed payment for the services performed by him under the void contract, with the exception of the schooling. Instead of receiving that, he-was put to work when he should have been in school. For the work during those periods he is entitled to recover under the common counts, because he was never paid for it in any manner. An implied promise to pay for what was thus done outside of their arrangements would undoubtedly have arisen; and it so happened that this implied promise was-exactly commensurate with the recovery. Under these circumstances the judgment ought not to be disturbed. It so-happens that the parties tried, and the jury considered and passed upon the real subject of legal controversy between them, and the rule of damages they applied to it was the proper one.
¶6The judgment must be affirmed with costs.