John Hair vs. William Bell, 6 Vt. 35

The opinion of the court was pronounced by Mattocks, J. — The defendant in the county court mo - ' ved to dismiss the action for the want of jurisdiction in the justice from whose judgment thé cause was appealed. And the first question is, whether the justice had jurisdiction of the cause.

The declaration in substance alleges that plaintiff agreed to work as a joiner for the defendant a year; that defendant agreed to employ and furnish him with meat, drink and lodging, a warm shop in winter, and at the end of the year to pay him one hundred and eighty dollars, or so much as should then be due ; that plaintiff labored from the 11th of June to the 8th of January, in pursuance of said agreement, when defendant refused further to employ him or furnish a shop, and concluding to his damage ‡ 100. Upon this declaration, what would be the rule of damages ? There is none apparent and ce r-tain.

As the term of actual service was about six months, it might be about $90 — half the stipulated price for a year; and the proof might make it more, and possibly less. The plaintiff, in his suit, estimates it at $100. Has the defendant a right,-upon this motion, to raise this estimate, which he would not be bound by in an after suit brought before the county court? Or could that court be called upon to prejudge as to the damages ? We think not: for aught that appears upon the pleadings, the debt, or matter in demand, was not over $100. In Cannon & Warren vs. Merrill, 3 Vt.

R. 30, it was decided that in an action of debt on a judgment originally over $100, but paid and endorsed to less, a justice had jurisdiction ; and the court say, “ that in all cases where by the rules of pleading, the plaintiff in the form of action is bound to declare for the original amount of his claim, and cannot demand in debt or damages according to the nature of his action less, it is immaterial as it respects the question of jurisdiction, what is the sum actually due.” The converse of this proposition is inevitable, that where he is not obliged so to declare, the amount due is the material question.

Besides, the $180 was never to be due until the labor was performed,' and that not having been done from whatever cause, it has not become due. The value of the whole year’s work cannot in any event be the rule of damages, when but a part has been performed ; and the amount ef the original subject matters of the contract can. make no difference. Harrington for defendant. Hazen for plaintiff.

If a pair of horses are sold for $200, and warranted sound, and ‡180 paid towards the price, and they are unsound, which lessens the value $20, surely a justice would have jurisdiction in a suit brought to recover the balance due for the horses, or the damage of $20 for their unsoundness. The motion to dismiss was properly overruled. The cause then came on for trial. The plaintiff proved his performance of certain labor, and that it was worth $15 per month.

The defendant then gave in evidence a certain contract between the parties, stating the contract much as plaintiff had set forth; and it was conceded that the plaintiff left the service of the defendant before the time specified in the contract had expired j and the court decided if he did so, without sufficient cause, the plaintiff could not recover. This was correct upon the ground that the con-(¿ tract was for an entire year, and not by the month; and the performance of the labor was a condition precedent.

The plaintiff then gave evidence tending to show that the defendant employed the plaintiff at times in building boats, getting out timber and floating it to the place where it was required for use. The court then decided, and so charged the jury, that if the defendant did put the plaintiff to this service, and he performed it without objection, it furnished no sufficient ground for the plaintiff’s leaving the service of defendant. That this charge was right, can scarcely admit of a question.

These occasional changes in the kind of labor, consented to by the plaintiff, (for his silence, or not objecting, can be deemed nothing less,) could be no cause nor even excuse for quitting the defendant’s service. The judgment of the county court is affirmed.