#### E. S. Fowler v. August Peterson.

Wages—Action to Recover—Witnesses—Question for Jury—Instructions —Verdict—Surplusage.

In an action for wages it is held: That it was for the jury to determine whether to believe the plaintiff or defendant, they being the only witnesses; that there is no substantial error in the instructions; and that the verdict is not vitiated by surplusage.

[Opinion filed May 24, 1887.]

Appeal from the County Court of Sangamon County; the Hon. J. H. Matheny, Judge, presiding.

Mr. N. M. Broadwell, for appellant.

Mr. Joseph M. Grout, for appellee.

Per Cruriam.

This suit was for a balance claimed for wages, brought by appellee before a Justice of the Peace, and appealed to the County Court, where he obtained a verdict for §137, remitted §5 and. took judgment for §132. The parties were the only witnesses. Their testimony was contradictory as to the rates per month which plaintiff claimed were agreed on for different periods of his service; and notwithstanding the defendant’s entries in his memorandum boob, agreeing with his statement, the jury appear to have allowed a greater weight to the testimony of the plaintiff. For what reason they did it we can not know from the record, nor can we determine that they had none that was good or sufficient. It was their right and duty to do so if to their minds it had the greater weight. The instructions were few and brief, but clear, and, as we think, correct and sufficient. The first for the plaintiff is certainly the law, where *82there is no disparity, or none that is marked, in the number of witnesses on the respective sides. The second does not assume any fact, is purely hypothetical, and might as well have been asked by the defendant. The finding, by the verdict, that the amount was “wages due plaintiff as a servant or laborer,” was, at the worst, only surplusage, and did not vitiate what' preceded it.

Judgment affirmed.