On Motion for Rehearing Defendant's petition for rehearing is based chiefly on the contention that plaintiff's testimony on cross-examination differs from that on his direct examination in that the latter tended to establish the contract pleaded in the complaint, namely, an agreement to perform labor for defendant in surveying a pole line at an agreed compensation of $10 a day, while the former tended to establish that plaintiff agreed to make acomplete survey of said line at all points, including the furnishing of maps, etc.
It is therefore urged that this case is governed by the rule announced by this court in Whorley v. Patton-Kjose Co. Inc.,90 Mont. 461, 5 P.2d 210, 218, that respondent "is not entitled to recover unless that portion of his testimony least favorable to his contention is of such a character as to authorize recovery for him." *Page 402
Admitting that the testimony alluded to was given by plaintiff[5] on his cross-examination, it is in our opinion capable of reconcilement with his testimony in his case in chief as being merely an identification of what the job consisted of, namely, what had to be done to complete the survey on which plaintiff had agreed to perform labor for $10 a day for his personal services, and not a statement of what was necessary to complete plaintiff's contract. So understood there is no contradiction in plaintiff's testimony on direct and cross-examination.
Assuming that there is a conflict in plaintiff's testimony on direct and cross-examination, we do not consider that on the total facts in evidence in this case we are bound to reject plaintiff's testimony on direct examination because of such conflict, in view of the fact that the "common sense rule" invoked by appellant would seem to establish the fact that defendant did hire plaintiff on the terms testified to by plaintiff in his direct examination. We have reference to the fact to which attention is directed in our opinion, that defendant paid plaintiff $772 for work which it says plaintiff agreed to do for $500; that it made this payment at the rate of $10 a day for plaintiff's work and that the last payment of $290.50 was made after plaintiff had ceased working on the survey.
It is our conclusion that we cannot with propriety say that the evidence preponderates against the decision of the trial court. The motion for rehearing is denied.
Mr. Chief Justice Adair and Associate Justices Gibson, Angstman and Metcalf, concur.
Rehearing denied July 2, 1948.