The opinion of the court was delivered by
Redfield, J.We understand the auditor to have found, substantially, that there was no absolute contract as to the price of the labor done by the plaintiff, but, at most, to give what Chandler gave the plaintiff, that being $1,50 per diem. This being so, we do not see, how the plaintiff can expect to recover more, as the auditor expressly finds, that his labor was worth no more than $1,50 at the most.
*298If, then, we treat the finding of the auditor as amounting to a special contract to pay $1,50 per day, still it is competent for the defendant to show, that the plaintiff was unfaithful, or indolent, by reason of which his wages should be reduced below the stipulated price. And this we understand to be the ground stated by the auditor for only allowing $1,25 for most of the work.
It is said, that the defendant is bound by his acquiescence in the manner of the plaintiff’s performing his work. That must depend so much upon circumstances, which are not detailed here, that it is impossible to determine it, in most cases, as matter of law, — certainly, unless the facts are minutely detailed. Neither the defendant, nor his chief clerk, might have been fully aware of the plaintiff’s defaults, until near the close of his labor ; and, if so,-they might have been in such stress of necessity for that kind of. labor, as to justify their hoping, to the last, that he would do better; so that it is impossible for us to know, that the defendant should be bound, by his acquiescence, to the full extent.
But to the extent of what he actually paid the plaintiff for his labor, we think he should be bound. There is no reason whatever to suppose, that the plaintiff expected he was taking goods, or money, on credit, of the defendant, or that the defendant so considered the matter.
Judgment reversed, and judgment for the defendant for his costs in the county court, deducting the plaintiff’s costs in this court.