#### BAGLEY *v.*BATES.

“Work and labor — rule of damages where no price is agreed — special contract ended — new trial — reduction of verdict.

In assumpsit for work where no price is fixed, the rule is to taike the-common price paid for such service at the time and place of performance.

If there has been a special contract which has been rescinded, or put an end to, or the work has been done, the plaintiff may recover on the common counts, though the contract price will be the rule of damages.

You cannot inquire in either case how much the services netted the employer.

A-new trial will be-refused -if the-plaintiff reduce his verdict by remission of what is right.

Assumpsit for work and labor and for services rendered the defendant as deputy auditor. Plea, non assumpsit.

The plaintiff after examining a witness as to what his services were worth, and the usual wages paid for similar services, asked him how much the defendant received for his compensation as auditor.

*P.*Hitchcock,

objected to the question as irrelevant.

Giddings, contra,

claimed a right to show in, that way what the sérvices netted to the employer.

*Giddings*and *F. Wade,*to jury, for the plaintiff.

P. *Hitchcock*and *E. Wade,*contra.

By the Court.

The claim is for what the services rendered were reasonably worth. You have a right to the customary wages. These can be shown by evidence of the usual price paid for such services in the place where these services were rendered. If the price can be enhanced by showing they were beneficial to the employer in an extraordinary degree, they may likewise bo reduced, by showing they were oflittle or no use. The rule is general, and fixes the compensation, where no price is agreed, at the common price for like service, and whether the employer make much or little, or lose, makes no difference, of that he runs his own risk. The question cannot be asked.

The • defence insisted there was a special contract. It was admitted one had been entered into originally. Notice had been given to the plaintiff to produce it, which not being done, Bates, the defendant, was called and sworn as to the loss of the copy he had, and then other witnesses were called as to its contents.

By the Court, to the jury. It is conceded before you that services were rendered by the plaintiff for the defendant, and that there once was a written contract for those services and fixing the price. But it is insisted the contract was cancelled or put an end to. Notwithstanding the contract, if the work has been done, or the contract has been rescinded by the parties, the plaintiff may recover in this form of action, though if the work were done under *706the written contract, the price therein stipulated will determine the •amount of compensation. So if the contract has been put an end to, or cancelled, the plaintiff may recover what such services are reasonably worth, or that compensation usually paid for like services at the time and place when and where these were rendered. Having settled the right to compensation, if any, and the amount, you will adjust the other accounts between the parties and find the balance: even if the plaintiff have no right to recover in this form of action for the service as clerk, the other accounts may be adjusted.

Verdict for the plaintiff $239 96.

Motion for a new trial, but the plaintiff remitted so much of his verdict as to reduce it to *$175,*and judgment was rendered.