#### Clark vs. Roop.

In an action of assumpsit for work and labor, proof of work done by tlie plaintiff for a third person, may be given under the common indebitatus count for work and labor done for the defendant, where the work was done, at the request and upon the credit of the defendant.

Error to Johnson Ovromt Oowrt.

Hon. ¥h. H. Eeild, Circuit Judge, presiding.

S. H. Hempstead, for the plaintiff.

The instruction asked by Clark should have been given, because it would seem to be a plain proposition that under a count for work and labor done for one person, evidence is not admissible to show that work was done for another and different person, and, when so admitted, cannot' sustain the count. .

The proof is clear that the work done by Hoop was on the mill of Edwards, and, furthermore, was'of no value, and a new trial should have been granted on that ground.

Hike & CumMINS, contra.

No exception was taken, as to the refusal of the instruction, at the time, and no question remains as to that. (6 Eng. 627/ 13 'Ark;. 354.) The Court cannot interfere to disturb the verdict' — as there is sufficient evidence to sustain it. 13 Ark. 236, 295, 306/ 6 Eng. 455, 630.

Mr. Justice ’Walebe

delivered the opinion of the Court.

This was an action of assumpsit, brought by Hoop against Clark, for work and labor done at the instance and*request of Clark for him.

It seems that Clark, the owner of a mill, rented it td^one Edwards. Hie mill was out of repair, and whether, under the con*173tract of rent with Edwards, Clark was to put tbe mill in repair, or keep it in repair, does not appear from tbe evidence. Be tbis as it may, Clark addressed to Boop tbe following note : “ Mr. Boop: I want yon to put in tbe new works in tbe water mill for Mr..Edwards.” There is evidence that Boop worked on tbe mill, that be was a mill-wright, and of tbe value of tbe work done.

Tbe. only material point to be considered arises upon tbe instruction asked by tbe defendant, and refused by tbe Circuit Court; which was, in effect, that proof of work done by tbe plaintiff for Edwards, at tbe request of Clark, would not support a count for work and labor done for Clark. Under tbe circumstances of tbe case, we think tbe instruction properly refused. It is true that, in Clark’s written request or engagement, (for, having been accepted by Boop, it became, in effect, such), be did request Boop to work-upon tbe mill for Edwards, and if Boop bad declared upon tbe special contract, there would have been stronger grounds for sustaining tbe instruction asked; but tbe defendant is charged in tbe common indebitatus count for work and labor. And, under such count, tbe question is,‘whether tbe plaintiff may not bold tbe defendant liable for work done at bis request for another, as for work done for himself. Tbe undertaking was certainly at tbe instance of Clark, and tbe credit given to him; at least tbe plaintiff might, if be thought proper, charge him with tbe value of tbe work. Such is tbe rule held in Scott vs. Messick, (4 Mon. 535.) In that case, tbe facts were, that Scott employed Messick to do tbe stone work on a building then being erected on tbe land of Mary Scott and for her. Tbe action brought was assumpsit, under tbe common counts, for work and labor done, and for Scott and at bis request. After tbe evidence was closed, tbe defendant moved tbe Court to instruct tbe jury as in case of a non-suit upon tbe samp ground urged in tbis case. Tbe Court held tbe doctrine to be well settled that, in respect to work and labor, or other personal service, however special the'contract, if not under seal, and tbe terms of it have been performed on tbe plaintiff’s part, and tbe remuneration was to be in money, it is *174not necessary to declare specially; and tbe common law indebita-tus count is sufficient. And in tbe same case, tbe Court, wben considering tbe question of variance between tbe allegation and proof, says: “If Messick bad declared specially upon tbe original contact with tbe appellant, for tbe work, it might, with great plausibility, at least, be said that, as respects tlie liability of tbe appellant, tlie wall wbicb was put up under tbe contract by Mes-sick, should bave been treated as tbe appellant’s wall, and, tbougb proved to be upon tbe land of Mary Scott, tbe variance between tbe proof and tbe declaration in such case, would be a variance in form only; but, be that as it may, there can, we apprehend, .be no reasonable doubt but that the variance is not such as to preclude a recovery under tbe indebitatus*count.”

Tbe other grounds relate solely to- tbe sufficiency of tbe evidence to sustain tbe verdict of tbe jury. There was proof that dhe defendant worked upon the mill by tbe day, that be was a -jnill-wrigbt, that two dollars per day were paid wages for bis .•services, and that others had given him that price. It is true ithat several of the witnesses depose that the work was of no value; One witness states that the new work was improperly put into the old work. Some of the witnesses are of opinion that tbe new work gave w;ay first, others that tbe old work first gave way; and, from the whole tenor of tbe evidence, we may fairly infer that the work was considered, by tbe witnesses, of no value, because it gave way, and not that the work was not in other respects done in a workman-like manner. Now, it is very evident, that, if the defendant caused tbe new work to be attached to old work, which gave way, and thereby the new work became of no value, that the plaintiff should not be held accountable for the consequent loss of value in the work. The jury may have given credit to the witness who thus deposed, or they may have considered it work done by the day, under the inspection of the defendant or his agent. Be-this as it may, the jury were the proper judges of the weight to be given to the statement-of the witnesses, and as there was no total lack of evidence to sustain the verdict of the jury *175although, it is far from satisfactory to our minds, we do not feel at liberty to set the verdict aside. Let the judgment be affirnfed.