#### William H. Bean v. Anthony Elton.

Master and Servant—Recovery of Wages—Wrongful Discharge.

1. No recovery can be had under the common counts, the declaration containing no others, in an action for damages resulting from the breach of a special contract of service.

*4432. It was error, in the case presented, to refuse an instruction asserting that the plaintiff was required to make out a case by a preponderanee of the evidence.

[Opinion filed June 1, 1892.]

Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding.

Mr. F. M. Williams, for appellant.

Ho appearance for appellee.

Waterman, P. J.

Appellee brought suit to recover the stipulated compensation he would have received for some six months’ services, had he not, as he insisted, been wrongfully discharged.

The declaration contains only the common counts. The action being not for work and labor performed, but for damages resulting from a breach of a special contract, no recovery could be had under the common counts. 1 Chitty’s Pleadings, 359, 360; Hulle v. Heightman, 2 East, 401; Trustees v. Shaffer, 63 Ill. 243.

The defendant asked to have the jury instructed that the plaintiff must prove his case by a preponderance of the evidence; this the court refused to do. Under the issues formed, the burden being upon the plaintiff, he was required to make out his case by a preponderance of the evidence, and this instruction should have been given. Watt v. Kirby, 15 Ill. 200; Schroeder v. Walsh, 120 Ill. 403.

The judgment of the Circuit Court will be reversed and the cause remanded.

Reversed and remanded.