[No. 706.]

#### JAMES PAYNE SMITH, Respondent, *v.*HENRY LEE, Appellant.

Allegations oj? Complaint not Denied in the Answer. — Where the complaint alleges that defendant agreed to pay plaintiff four dollars per day for his services, and the answer does not deny that allegation, no issue is presented by the pleadings as to the value of plaintiff’s services.

Instructions where no Injurx Occurs. — Where it clearly appears that appellant was not injured by the refusal of the court to give certain instructions asked by him, it is unnecessary for this court to decide whether said instructions are correct or not.

Hules or Court — How Enforced. — It is doubtfulif the district court could enforce a rule of court that was not formally recorded in the minutes and published for thirty days, as by law required. This question referred to but not decided.

*209Appeal from the District Court of the Sixth Judicial District, Eureka County.

The facts are stated in the opinion.

*David E. Bailey,*for Appellant.

The court erred in refusing to give the instructions , asked for by appellant. Both of the instructions state the law as applicable to this case. There was a conflict in the evidence, and respondent had a right to ask the court that the plaintiff must establish any fact by a preponderance of evidence, and that if five hundred and eleven dollars was all that was due, then the jury must find for the defendant. The only reason assigned for the refusal to give the instructions was, that the same had not been offered before the commencement of the opening argument of the plaintiff’s counsel. It will not be contended that there was any rule of court on this subject, but simply that it had been, and was, the practice of the court to require certain things to be done. Courts have power to adopt rules not in conflict with law, but such rules must be made in accordance with the statute. (1 Compiled Laws, Sec. 930.) Practice or custom cannot make the rule; but it must be adopted and published in conformity with the provisions of the statute.

*Thomas Wren,*for ^Respondent.

I. The court properly refused to give the instructions asked. Instruction No. 1 is not properly qualified. It, in effect, assumes that the defendant is required, to entitle him to recover, to establish all matters of fact alleged by him— those admitted by the answer as well as those denied — and in this respect calculated to mislead the jury. It is too general. The instructions were not handed to the judge in time. *(Waldie*v. *Doll,*29 Cal. 561; *People*v. *Keefer,*18 Cal. 636.)

II. Defendant’s instruction No. 2 was properly ref used for the reason that no facts were proven to authorize it. *(Thompson.*v. *Lee,*8 Cal. 275; *People*v. *Hurley,*8 Cal. 390; *Tompkins*v. *Mahoney,*32 Cal. 321.)

*210By tbe Court,

Beatty, J.:

In ibis case the defendant appeals from a judgment rendered against liim for three hundred and fifty-two dollars and fifteen cents, and from the order overruling his motion for a new trial. The complaint is verified and the allegations are, that the plaintiff worked for defendant two hundred and forty-three days, at defendant’s request, for which he agreed to pay him four dollars per day; that his services were'reasonably worth nine hundred and seventy-two dollars, which defendant promised to pay in gold coin; and that no part of the same has been paid, except one hundred and three dollars and eighty-five cents. The answer admits the performance of two hundred and thirty-one days’ la.bor. It does not deny the promise to pay four dollars per day, but alleges that the reasonable value of the services did not exceed six hundred and eighty-seven dollars. It pleads payment, and a counter-claim, for which defendant demands judgment. Upon the issues raised by these pleadings the parties went to trial. What were the issues? The defendant, by failing to deny, admitted that he had promised to pay plaintiff four dollars per day for his services, and his denial of their alleged value became immaterial. The only allegation of the complaint, therefore, which required proof to support it, was that relating to the number of days that plaintiff worked — he claiming two hundred and forty-three, and defendant admitting two hundred and thirty-one. The plea of payment, and the counterclaim asserted in the answer, of course raised issues which the defendant was bound to maintain by affirmative proof.

On the trial the plaintiff testified to having worked two hundred and forty-three day's; that defendant promised to pay four dollars per day, and that he had paid him five hundred and eleven dollars, and rested his case. The defendant testified: “I am defendant in this action. I employed the plaintiff to work for me. I agreed to pay him ninety dollars per month and board him.” The only other testimony offered by the defendant was as to the value of the *211plaintiff’s' services, and tbis testimony was all either excluded or stricken out by tbe court upon tbe ground that it was immaterial. Two of tbe errors assigned relate to tbe exclusion and striking out of tbis testimony. We tbink tbe rulings of tbe district court upon tbis matter were correct. If tbo defendant promised to pay four dollars per day, as be admits be did, by failing to deny tbe allegation to that effect, be was bound to pay at that rate although tbe services may have been worth less. Tbe only other error complained of is tbe refusal by tbe court to allow tbe following instructions asked by tbe defendant: “1st. Tbe jury are instructed that tbe plaintiff, in order to establish any matter of fact alleged by him, must prove tbe same by preponderance of testimony. 2d. If tbe jury believe from tbe evidence that when tbe defendant paid tbe plaintiff tbe sum of five hundred and eleven dollars, which is admitted, that sum was all that was due from tbe defendant to tbe plaintiff, they will find a verdict for tbe defendant.” The court refused to give these instructions without deciding upon their correctness, upon the ground that they were not requested before tbe conclusion of plaintiff’s opening argument, and tbe *practice*of tbe court required them to be submitted to tbe court and opposing counsel before tbe argument began in order to entitle them to be considered. It is doubtful if tbe action of tbe court could be sustained upon tbe ground specified. It appears that tbe *practice*referred to is not established by any rule formally recorded in tbe minutes of tbe court and published as other rules of that court have been. And courts are not allowed to enforce rules of their own making until thirty days after their adoption and publication. (1 Comp. L., Sec. 930.) What is requisite to the adoption and publication of a rule of court, and whether a long-continued practice is alone sufficient for that purpose, are, however, questions which, in tbis case, it is unnecessary to decide. And whether or not tbe instructions refused were correct in themselves, or liable to the criticism of respondent, and whether they were called for, in view of tbe testimony, are also questions which it is unnecessary to *212decide. It is at least certain, that tlieir refusal did the appellant no harm. He had admitted two hundred and thirty-one days’ work and the promise to pay four dollars per day — that is, he had admitted an original indebtedness of nine hundred and twenty-four dollars, to which he had pleaded payment and a counter-claim. The plaintiff was, on the pleadings, entitled to a judgment for nine hundred and twenty-four dollars, less such amount as was admitted or proven by way of payment or counter-claim. The defendant offered no testimony whatever of any payment or counter-claim, and the only proof of payment was the admission of the plaintiff that he had received five hundred and eleven dollars. On this testimony he was entitled to a verdict for four hundred and thirteen dollars and he only recovered three hundred and fifty-t’wo dollars and fifteen cents.

Judgment and order affirmed.