#### JESSE B. EVANS, Plaintiff in error, *vs.*STEPHEN O. BENNETT, Defendant in error.

EEROS TO LA FAYETTE CIRCUIT COURT.

When, a cause is tried in the circuit court, -without the intervention of a jury the finding of the court as to the facts will be held equivalent to the verdict of a jury.

When the evidence is conflicting, this court will not interfere with the finding of the court below upon the weight of evidence.

When one party agrees to work for another at a certain rate of wages per month, and either party is at liberty to put an end to the agreement at any time, the servant is entitled to recover at the stipulated rate for the time he serves, though he quits upon his own motion.

This was an action commenced before a justice of the peace to recover for three and a half months’ wages for work and labor at the rate of $14.00 per month. The plaintiff recovered $49.00 damages and costs, and the defendant appealed to the circuit court.

On the trial in the circuit court the plaintiff proved the service rendered and the agreement between the parties substantially as set forth in the opinion of the court. The evidence was somewhat conflicting, but the facts found by the circuit court are substantially as stated.

*Knowlton fy Higbee,*for the plaintiff in error.

*Charles Bunn,*for the defendant in error.

*405
      *By the*Court,

Cole, J.

It is contended by the counsel for the plaintiff in error in this case, that where there has been an entire executory contract, and one party has performed a part of it, and then wilfully refuses, without legal excuse, and against the other party’s consent, to perform the rest, he can recover nothing on the contract, either in special or general assumpsit, as performance in the manner stipulated is a condition precedent to the compensation becoming due. It does not become necessary, however, to examine the correctness of this proposition of law in this case. This cause was tried by the circuit court without the intervention of a jury, and we presume the circuit court was satisfied from the evidence that the agreement between the parties was that Bennett, was to work for Evans for six or eight months at fourteen dollars a month, unless either' party should choose to put an end to the employment before the expiration of that period, but that either party might, on becoming dissatisfied, terminate the service at any time. There was testimony in the case which went to show that such was the contract between the parties, and if the circuit court took that view of it, judgment was very properly given for the defendant in error.' The testimony of the witness Ludlow was *“*that the plaintiff (the defendant in error) was to work at fourteen dollars per month ; that the contract was made in his presence on the second day of last April; that no particular time was fixed that the plaintiff was to work; that the agreement was that the plaintiff was to work for the defendant at fourteen dollars per month, six or eight months, unless the plaintiff and defendant, or one or other, got dissatisfied; and that if they disagreed, or either of them was dissatisfied, that then the plaintiff was to quit; that the defendant said at the time of making the agreement, that , he would not hire a man to work for him if they could not *406agree, or either was dissatisfied ; that when that was the case he would pay them off and let them go.”

Bennett wrought then three and a half months, and then quit, as he was at liberty to do if this was the contract. He had agreed to work only so long as he was satisfied with his employer, or his employer should be satisfiedwith him, but when either was dissatisfied he was to quit, and was to be paid for the time of service at the rate of fourteen dollars a month. Probably the circuit court came to the conclusion from the whole evidence in the case that this was the contract between the parties, and consequently permitted the defendant in error to recover for the services rendered. We are not prepared to say that the proof did not sustain this view of the case, and therefore must affirm the judgment of the court below.