#### J. D. HARRIS v. L. C. BUIE and GALEN HARRIS, by His Next Friend, J. D. HARRIS, v. L. C. BUIE.

(Filed 20 April, 1932.)

1. Contracts F c — Under the allegations in this action for breach of con-tract the admission of evidence of reasonable worth of services was not error.

' Where an employee of a dairy sues his employer upon the contract of employment and alleges that he was to be paid a fixed sum per month plus a division of the profits when the dairy was brought up to “A” grade, the admission of evidence as to the value of the services rendered will not be held for error, there not being such a variance between allegation and proof as to constitute prejudicial error to the defendant.

2. Trial D a — Where defendant does not move for judgment as of non-suit he waives question of sufficiency of the evidence.

Where the defendant in a civil action does not comply with the provisions of C. S., 567, in making a motion for judgment as of nonsuit he waives the question of the sufficiency of the evidence.

Appeal by defendant from *Finley, J.,*and a jury, at September Term, 1931, of Rici-imoND.

As to both appeals no error.

(1) This is an action brought by plaintiff, J. D. Harris, to recover of defendant, for breach of contract, the sum of $245 for services in connection with the defendant’s “Sunny Slope Dairy,” near the town of Red Springs, N. C.

The defendant in his answer denied any breach of contract or that he owed plaintiff anything, and says: “That the defendant paid the plaintiff much more than his services were really worth and paid him every cent that he obligated to pay him, and, therefore, the defendant does not owe the plaintiff any sum whatever.”

*635Tbe issues submitted to tbe jury and tbeir answers thereto were as follows :

“1. Did tbe plaintiff, J. D. Harris, enter a contract witb tbe defendant, L. C. Buie, as alleged in tbe complaint? Answer: Yes.

2. If so, did tbe defendant break said contract? Answer: Yes..

3. What damages, if any, is tbe plaintiff entitled to receive? Answer : $162.50.”

Judgment was-rendered on tbe verdict for plaintiff and against tbe defendant.

(2) Tbis is an action brought by plaintiff, Galen Harris, by bis next friend, J. D. Harris, against defendant for breach of contract, to recover of defendant tbe sum of $300 for six months’ services at $50.00 a month, in connection witb defendant’s dairy above referred to.

Defendant denied that be ever employed Galen Harris “to drive one of tbe defendant’s milk trucks at a salary of $50.00 per month.”

Tbe issue submitted to tbe jury and tbeir answer thereto were as follows: “Wbat amount, if any, is tbe plaintiff, Galen Harris, entitled to receive of tbe defendant ? Answer: $200.”

Judgment was rendered on tbe verdict for plaintiff and against defendant. Tbe defendant excepted and assigned errors as tó tbe signing of both judgments, made other exceptions and assignments of error and appealed to tbe Supreme Court.

*Fred W. Bynum for plaintiffs.*

*J. O. Sedberry for defendant.*

ClabKSOn, J.

(First action.) At tbe close of plaintiff’s, J. D. Harris, evidence, and at tbe close of all tbe evidence, defendant made motions for judgment as in case of nonsuit. O. S., 561. Tbe court below overruled these motions, and in tbis we can see no error.

Tbe plaintiff J. D. Harris testified, in part: “Mr. Buie paid me $40.00 per month but that was not tbe contract exactly. That was tbe contract until we reached tbe grade A standard. . . . Tbe trade about my getting half of tbe profits was to start when I got tbe dairy up to A grade standard. I demanded my half of tbe profits tbe first month after it went up to grade A, but be said wait until we got a few more cows.”

We do not think there is such a material variance between tbe allegations and proof that defendant can complain of. *Stokes v. Taylor,*104 N. C., 394; *Dorsey v. Corbett,*190 N. C., 783; *Brown v. Williams,*196 N. C., 247.

When there is an express contract for a stipulated amount and mode of compensation for services, tbe plaintiff cannot abandon tbe contract *636and resort to an action for a *quantum meruit*on an implied assumpsit. *Dorsey’s case, supra.*

(Second action.) The plaintiff, Galen Harris, testified, in part: “On 12 May I began driving Mr. Buie’s milk truck. He fired Ben McBryde and told father and I that be wanted me to drive the truck for bim and that he would pay me $50.00 per month, the same he had been paying McBryde. ... I worked for him six months and he did not pay me anything. I am claiming $50.00 for the six months. Mr. Buie never complained to me about my work. He said I had done all right. I was not of age to work for him and ask for my pay. I left that to my father as he was handling the business transaction.”

J. D. Harris testified, in part: “I have had the court appoint me as next friend of my son to bring this suit. . . . Mr. Buie got dissatisfied with one of his drivers and he asked me if I thought I could finish up and get ready for grade A- and let him put Galen on a truck. I told him I thought I could and so we called Galen over and he asked Galen if he would be willing to drive the truck at $50.00 per month, the same he had been paying McBryde. My son went to work for him the next morning. He worked six months. I never got any money from him for Galen.”

In this action Galen Harris, by his next friend, J. D. Harris, against L. C. Buie, at the close of plaintiff’s evidence the defendant, Buie, did not move for judgment as in case of nonsuit in the court below, nor at the close of all the evidence, as he had a right to do under C. S., 567. By the failure of defendant to follow strictly C. S., 567, *supra,*the question of the insufficiency of evidence is waived. *Nowell v. Basnight,*185 N. C., 142; *Penland v. Hospital,*199 N. C., 314; *Batson v. Laundry Co., ante,*560. For the reasons given, in the judgment of the court below we find

No error.