(concurring specially). The plaintiff avers that at Van Hook, North Dakota, between April'1 and September 1, 1915, he performed work, labor, and services for and at the request of defendant at the agreed price and reasonable value of $291.05; that no part of the same has been paid excepting a few small sums amounting to $85.25.
By answer defendant denies an express agreement in regard to the rate or amount to be paid for the services. He admits that plaintiff did perform labor and services for him and at his request, of the reasonable value of $176.16, and no more. He avers payments to the amount of $115. The case was tried by the court and judgment was given in favor of the plaintiff for $208.90. A motion for a new trial was denied. It was made on the ground of newly discovered evidence as disclosed by the affidavits of the defendant himself, Anton Ross, and Andrew Ostlund. The affidavits are of no force or consequence. They do not relate to the merits of the case.
The case was tried on the erroneous theory that plaintiff could not recover on proof showing the reasonable value of his services. That his recovery, if any, must be on proof showing an agreement to pay a fixed rate or compensation. The proposed newly discovered testimony is to the effect that there was no express agreement regarding the compensation. The complaint very properly alleges that the services rendered were worth a definite sum and that defendant promised to pay the same, and under the pleadings the plaintiff had a perfect right to show the reasonable value of his services and also an express agreement to pay the amount claimed and to recover the reasonable value in ease he failed to prove an express agreement.
The purport of the affidavits for a new trial is merely that there *299was no express contract concerning the rate of wages. There is no testimony given on the trial or in the affidavits that plaintiff did not ■do the work as alleged and that the work was not reasonably worth the sum claimed. The plaintiff testified to an express agreement to pay a stated compensation. He kept a book showing the days and dates, and the hours of his work, and the express rate or value of his services, and the several amounts paid him. As a mason his work was 50 cents an hour, or $5 a day; as a carpenter the rate was 35 cents an hour; as a common laborer, 30 cents an hour; and from that he paid his own board. He shows that he is by trade a mason and that during ten years he has worked at the trade nearly all the time. His testimony is .in every way clear, direct, and convincing, and his charges are modern and reasonable. And hence, the alleged express agreement as testified to by the plaintiff is highly probable. Obviously, there is no merit in the defense or in the alleged newly discovered evidence.