#### Oscar E. Shaffer and Edith Shaffer, Defendants in Error, v. Natoma Farm, Plaintiff in Error.

Gen. No. 20,690.

(Not to be reported in full.)

Error to the Municipal Court of Chicago; the Hon. Harry C. Moran, Judge, presiding.

Heard in the Branch Appellate Court at the October term, 1914.

Affirmed.

Opinion filed October 6, 1915.

Statement of the Case.

Suit by Oscar E. Shaffer and Edith Shaffer, in the Municipal Court, against the Natoma Farm, a corpora*98tion, to recover damages for breach of a contract of employment. Upon a trial before the court without a jury, plaintiffs recovered a judgment for two hundred and twenty dollars, and defendant sued out this writ of error.

Abstract of the Decision.

1. Appeal and error, § 1414 * —when finding of court will not be disturbed. Evidence, though conflicting, held to support a finding of the existence of a contract of employment for one year.,

2. Appeal and error,' § 1258 * —when party cannot complain of amount of recovery. A defendant cannot complain on appeal merely because the amount of damages allowed the plaintiffs was less than a sum which would have been justified under the evidence.

3. Appeal and error, § 1414 * —when finding of court not justified by evidence. Evidence fyeld not to justify a finding of default under a contract of employment, for while the employees did not appear on a certain date as required by the contract, it appeared that they were prepared' and ready to go but did not because defendant’s agent telegraphed them not to do so.

4. Frauds, Statute of, § 118 * —when statute must be pleaded. If the Statute of Frauds is relied upon as a defense it must be pleaded, unless the plaintiffs’ pleadings are in such form as to advise the defendant of the precise nature of the claim.

5. Municipal Court of Chicago, § 13 * —what is nature of affidavit of merits. An affidavit of merits filed in the Municipal Court is not technically a pleading.

6. Pleading, § 262 * —when amended or additional pleading is necessary. Where a statement of claim sought recovery for damages for breach of a contract of employment, and the defendant filed an affidavit of merits denying such contract, the defendant could not defend upon a different theory without asking leave to file, and filing, an amended or additional affidavit.

7. Appeal, and error, § 425 * —when defense cannot be raised on appeal. In an action for damages for breach of a contract of employ*99ment, where it appeared that the defendant at the trial orally urged the Statute of Frauds as a defense, but did not plead such defense by filing an amended affidavit of merits, a contention that the contract was void under the Statute of Frauds could not be urged on appeal, not being brought properly before the trial court for decision.

*98Alden, Latham & Young and Asa Q. Reynolds, for plaintiff in error.

William A. Jennings, for defendants in error.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Fitch

delivered the opinion of the court.