majority">Mr. Justice McAllister

delivered the opinion of the Court:

This action, as we understand it from an examination of the pleadings and evidence, was not brought by Daly to recover damages for a wrongful discharge from service, by the Mahons, before the expiration of the time for which they had agreed to employ him, nor to recover the stipulated wages for the whole of that time, but simply for the balance alleged to be due, according to the terms of the contract, for the time during which he was in their actual service.

The declaration contains counts upon the special agreement, alleging, as breach, the non-payment of the wages specified, and has, also, the indebitatus counts for work and labor. If, however, the plaintiff had gone upon the indebitatus counts, on the theory that the contract had been rescinded, he would have been confined, in his recovery, to a quantum meruit. In that case, the evidence offered by the defendants bearing upon the value of plaintiff's services would have been admissible, and there would be error in its exclusion; but the case was, in fact, tried upon no such theory. The contract, instead of being treated as rescinded, was regarded as open and still in force, so far as the plaintiff's theory of the case was concerned. The defendants, it is true, endeavored to establish that plaintiff had committed such a breach of his implied obligations as to justify them in treating the contract as at an end, and discharging him from service. There was a direct conflict of evidence as to the fact of misconduct, upon which defendants assumed to exercise their right of rescission. The question of the credibility of witnesses, the duty of passing upon and reconciling or rejecting the conflicting evidence, were matters for the court, sitting in the place of a jury, with whose finding we can not interfere.

In the view we take of the case, the question whether the plaintiff agreed to serve the defendants until the first of January, 1873, is wholly immaterial, for it is clear, from the terms of the agreement, that the defendants covenanted to employ him until that time, at a salary of $1250 per month, payable semi-monthly. The evidence tends to show that the plaintiff was ready and offered to perform during the whole time, but that he was prevented from so doing by the acts of the defendants.

The court, sitting in the place of a jury, found the facts in plaintiff’s favor, and we perceive no objection, upon legal grounds, to the finding. .

The judgment of the court below will be affirmed.

Judgment affirmed.

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