By the Court,
Cole, J.As it appears to ns the material question in this case is the one raised as to the correctness of the following instruction asked for by the defendants and refused by the circuit court, to wit: “If the jury should find from the evidence that the plaintiff agreed with the defendants to work with them as foreman on their brick-yard during the brick-making season of 1S57, and said plaintiff left their employ without their consent, and without any good cause, before the expiration of the brick-making season, then they must find for the defendants.” The circuit court refused to give this instruction, having charged the jury that if they found that the plaintiff hired out to the defendants for the brick-making season, and left their employ before the expiration of the season, without their consent, that then they should allow him whatever his services were worth after deducting the damages if any sustained by the defendants, by reason of the plaintiff’s leaving before the expiration of the season.
As a matter of law we suppose if it had appeared from the *234testimony that the plaintiff had agreed to work for the defendants for any definite period, as for instance during the brick-making season, and had left their employ before the expiration of his term of service, without their consent and without a valid legal cause, that in that case, he could not recover pay for the partial service performed. The contract would be entire and a complete performance of the term of service would be a condition precedent to the recovery of the compensation agreed to be paid. But we do not see how this rule of law has any bearing upon the facts of this case as disclosed by the evidence. We have not been able to discover any testimony, either introduced by the plaintiff or the defendants, tending to show that the plaintiff agreed to work for the defendants during the brick-making season. There was an attempt on the part of the defendants, to show that it was a custom that foremen and hands who hived to work on a brick-yard, were hired for the brick-making season. But we regard the testimony upon this point as altogether too vague and uncertain to show an established custom as to the time of 'service — a custom entering into the contract and which the parties must be presumed to have had in view when they made the contract The whole evidence goes strongly to prove a hiring by the month at a given rate. Two witnesses only testified that it was the usage or practice that all hands hired on brick-yards are hired for the season of brick-making. This appears insufficient to show an ancient, universal and perfectly established custom, entering into and determining the contract of employment between these parties. So although we are of the opinion that the rule of law was incorrectly stated by the circuit court, yet it was an abstract proposition which had no application to the facts and proof in this case, and therefore is not a good ground of reversal.
A still further objection is taken to the verdict, which is *235that the jury found upon a quantum meruit,.while the complaint sets forth a special agreement on the part of the defendants to pay the plaintiff $100 per month for his services. According to this agreement it is insisted that the jury should have given the plaintiff forty dollars more than they found his due. The respondent however does not complain of this verdict, and he is the party prejudiced by it
The judgment of the circuit court is affirmed.