#### QUINCY MADDEN v. JAMES PORTERFIELD.

Where plaintiff had eontracted to serve defendant for ten months, for a certain sum, and, before the expiration of that time, defendant wrongfully dismissed him, and plaintiff sued upon the common count in assumpsit, it was held that he could recover, upon this count, for the time he had actually worked.

And it was further held, that, had the plaintiff inserted a count upon the special contract, he might have recovered for the whole time.

It is the province of a jury, to affix a value to services, according to their nature and extent, as proved; and it is not necessary for witnesses to estimate their value in money.

Where it was sought to prove the value of plaintiff’s services, during a term *167of seven months, it was held an immaterial question for the defendant’s counsel to ask witness the value of such services for half an hour, during which witness saw plaintiff at work.

This was an action of assumpsit, tried before Dick, J., at June Term, 1860, of Orange Superior Court.

The action was brought upon an open account, for work and labor done by the plaintiff for the defendant, and was commenced before a single magistrate. Plaintiff alleged that he had worked seven or eight months for the defendant on his farm, and that his services were worth eight or nine dollars per month. He first examined Woods McDade, who stated that plaintiff worked seven or eight months on defendant’s plantation. Plantiff’s counsel asked witness if plaintiff was a good hand on a plantation. This question was objected to by defendant’s counsel, but was admitted by the Court. Witness, then answered, that plaintiff was a very good hand to work on a plantation. Defendant’s counsel then asked plaintiff what work he knew of plaintiff’s doing for defendant. Witness replied, that he was present on the farm of defendant, two days with plaintiff, engagéd with him in rolling logs, splitting rails, &c., on a new-ground, and that the labor of plaintiff, for those two days was worth two dollars. Defendant’s counsel then asked witness what other work he knew of plaintiff’s doing for defendant. Witness replied that he lived a neighbor to defendant; that he frequently passed his plantation, perhaps as often as twenty times during the time the plaintiff was at work for him, and each time he passed, he saw the plaintiff at work on the farm. Defendant’s counsel then asked witness how long he saw him at work, each time he passed; witness said he could not say with certainty, but he probably saw him at work as much as half an hour sometimes when he passed. Defendant’s counsel further asked him, what his work, for the half hour he saw him at work, was worth. - Plantiff’s counsel objected to the last question, and the objection was sustained by the Court.

J. McDade was then examined. He stated, that he frequently saw plaintiff working on the farm of defendant, for *168'■for the space of six-or eight months; and that'plaintiff was en- ; gaged'iirgrubing,'farming, &e.

John Smith was next examined for 'plaintiff. He stated that he lived-OR'an adjoining farm to defendant; that plaintiff began to work'for defendant in -the month of November, and con tinned-to work until harvest following; that for two months of the time, he saw plaintiff at work on the farm of ■defendant, every work day; and that he was a good hand, and 'worth at least eight dollars per month.

Defendant’s counsel contended, that plaintiff was not entitled to recover, because he had made a special contract with defendant, to work for him on >his farm, for the term of ten months, for the sum of seventy five dollars, and had not performed his contract. Defendant’s counsel then introduced a witness by the name of James Porterfield, who stated that he heard the plaintiff say, he was to work for the defendant ten months for seventy five dollars. One Birch was also examined, who stated that he heard the plain tiff say, he was to work for the defendant ten months for seventy five dollars.

The plaintiff then examined one C-. iülison. She said, that after plaintiff had left defendant’s house, she was working for defendant, and heard him say that it was well for Quincy that he left, or it might have been bad times for him, but said he was sorry now, that he made an interruption with Quincy and drove him off.

The Court charged the jury, that if the evidence satisfied them that the plaintiff had contracted to work for the defendant for ten months for seventy five dollars, he was not entitled to recover, unless the defendant had put if out of the power of the plaintiff to perform his contract-by discharging him from his employment.

If they believed no special contract was made, and they further believed plaintiff had worked for the defendant, at his instance and^request, it was for them to say how much work he had done, and what was the value of that work, or if they believed a special contract had been made, as alleged by defendant, and that plaintiff had been prevented by defendant, *169from performing his contract, the plaintiff was entitled to recover for such work as he had done for the defendant. ■

The defendant’s counsel asked the Court, to charge the jury., that 'if the plaintiff was entitled to recover at all, he could only recover for the amount specially proved by his witness, and that was the sum of two dollars. The Court refused so to charge.

Nerdict and judgment for the plaintiff. Appeal by defendant.

Norwood, for the plaintiff.

Millar, for the defendant.

Manly, J.

This is an action of indebitatus assumpsit, brought by a hired servant, to recover compensation for work and labor.

Three questions are presented upon the record. The principal one is, whether, in case of a special contract to labor for ten months and a wrongful dismissal, plaintiff can recover upon an indebitatus count, for work and labor.

The action seems not to have been framed with a count on the special contract, in which case, by force of the discharge without cause, plaintiff might have recovered the stipulated sum for the whole time, but the plaintiff Jias relied upon a single count, as above stated, and although, in such action he cannot recover his whole wages for the entire term of hiring, as for a constructive service, yet, we are of opinion he may recover, regarding it as a rescinded contract, for his service up to the time of his dismissal; see 1 Parsons on Corn-tracts 520, note j, and the cases there cited.

The second point, viz : that upon the admissibility of evidence, was also ruled correctly by his Honor below.

It did not tend at all to aid the jury, in their■ enquiry,’ as to the value of a man’s labor for seven months, to know what the half hour of his time, when witness was with him on a certain occasion, was worth. The question was immaterial.

The instruction asked for and -refused, which constitutes the *170third point of exception to the trial, is based upon the idea that all evidence, as to the nature and extent of the services of plaintiff, was to be excluded from the view of the jury, unless the witnesses themselves made estimates of their value in money. This is not correct. It is the appropriate province of the jury to affix ••a value to services, according to their nature and extent as proved; and with the data afforded by the proofs in this case, we see no difficulty in the performance of that duty.

Per Curiam,

Judgment affirmed.