(dissenting in part).
I entirely agree with my brothers upon the first and third counts, and I am strongly tempted to go along with them upon the second also, for it seems to me scarcely credible that a jury would have taken that claim seriously. Nevertheless, the case seems to me well to illustrate how undesirable it is as a practical matter for judges to dismiss complaints in actions at law, because the plaintiff’s case seems to them and seems to us, obviously flimsy. The plaintiff swore that the defendant told him that the work which he was to take up for the defendant, and which he did take up, had been done by a clerk to whom the defendant paid only $45 a week; and that this induced the plaintiff to accept $50; and I think that he also proved that work of the same kind had not been done for $45. No doubt the plaintiff had to satisfy the jury that he would have stood out for more than $50 if he had not believed what the defendant told him, and he also had to satisfy the jury that he would have been successful in getting more than $50 — the difference being the measure of his damages. However, on these issues it would have been permissible I should think to allow the jury to form their own conclusions; and at least I think that it was necessary to wait until the defendant’s evidence had been put in.