Opinion by
Orlady, J.,The plaintiff brought this suit to recover the sum of $800, alleged to be due as a salary of $100 per month, from April 1 to December 1,1904, on an agreement made with the president and manager of the defendant company. The defense was that he was in the personal employment of Geo. D. DeGolia, who was then president and manager of the defendant company. The appellant frankly admits that.the question at issue *197was the credibility of the plaintiff’s witnesses and his claim. It is difficult to reconcile some of the conflicting statements of the witnesses. The solution of these questions was referred to the only tribunal authorized by law to dispose of them, and we accept the result arrived at as a fact settled by the verdict.
The third assignment of error is as follows: “We say to you, if you find that Mr. Ray was employed, according to the evidence, then this defense must fail. It cannot avail the defendant in this case. If he was actually employed to do the work, the question would be a question between DeGolia and the Jefferson County Gas Co.” If this were all that the court had stated on the subject, it would necessarily have given the jury a wrong basis for determining the question between the parties. The mere fact of the work being done was not sufficient to entitle the plaintiff to recover. His claim was for careful and diligent work, performed by him for the defendant at the defendant’s special instance and request, and it was necessary for him to make good that allegation before he was entitled to a verdict. The jury was directed to examine all the evidence carefully, and while it happens that in several places in the charge it was not made clear that the measure of proof should be as above stated, the concluding suggestion in the charge carefully submitted that thought in a way in which the jury could not misunderstand it.
The court said as follows : “ If you find from the evidence that has been given to you by the defendants, that he was not employed for them, that he did not do the work for them, or that he has been paid, and there is no allegation that he has been paid, then he would not be entitled to recover. But we say, whether or not Mr. DeGolia was doing this work by contract, it cannot affect Mr. Ray, provided you come to the conclusion that he was actually employed for the Jefferson County Gas Company.” Taking the charge as a wholb, we do not feel that there was any reversible error.
The judgment is affirmed.