On Petition for Rehearing.
Dowling, J.In their petition for a rehearing, appellants complain that the court failed to consider the errors assigned upon the rulings on the demurrers to the second and fourth paragraphs of the answer.
The only reference made in the briefs of counsel for appellants to this branch of their case is the following: “The second paragraph of the answer is good, for the reason that the master owns, and is entitled to receive, all the earnings of the servant in the business in whigh he is employed. And, therefore, such earnings are a proper set-off to a demand for wages. The fourth paragraph is good, for the reason that it shows, specially, the non-performance of the contract by appellee.”
The evident insufficiency of the second paragraph of the answer, and the fact that the fourth was merely a special denial, taken in connection with the failure of counsel to dis*648cuss either of them, created the impression that the errors assigned, upon these rulings, were not seriously insisted upon.
The second paragraph of the answer is bad. The action of the appellee was not for wages, but for damages for a breach of contract. ITis earnings belonged to him, and appellants had no claim upon them. The fact that appellee did earn wages after he was discharged by appellants might have been set up by way of partial answer to reduce the amount of appellee’s recovery, but it could not be pleaded as a set-off.
Neither was this paragraph good as a partial answer, for the reason that it did not confess and avoid, the complaint, or any part of it. The averments were that the appellants “fully complied with, all of the conditions of said contract on their part to be performed, but that the plaintiff refused and failed to comply with said contract.” It then alleges that, while so acting and being otherwise engaged than in the service of appellants, the appellee earned and received for his own use $600. If these allegations were true, appellants had a claim for damages for the breach of the contract, and appellee had no cause of action whatever against them. In such case, the measure of damages would not be what appellee had earned, but what appellants had lost.
The fourth paragraph of the answer, as we have stated, was a special denial. It was pleaded in connection with the general denial. The ruling on the demurrer to it was harmless, as all facts admissible under it could have been given in evidence under the general denial. It might, properly, have been stricken out on motion.
It is insisted that the trial court erred in giving instructions numbered five and nine, and that this error should reverse the judgment. These instructions were as follows:
“There is nothing in this. contract that requires Love to work every day and hour for three years. It is to have .a reasonable construction, and the fact that he had leave for two or three days to look after his private affairs, and did so, or that he went for a half-day to a fair, and a like time to the *649races, without their permission, but with their' subsequent knowledge, and no objection or protest was ever made to him, nor any complaint, or claim against him, and he continued in their employment for months afterward, such failures would not be ground for discharging him at the time when he was discharged.”
‘‘Although the law requires an agent to obey all reasonable (directions and orders of his employers, and the directions in which he failed, or refused to obey, were in unimportant matters, and no objections were ever made to him for such failures, and he continued in his employment, his failures or refusals would not be sufficient ground for discharge long after they occurred.”
The objection made to these instructions is that the court assumed the existence of certain facts, and in so doing invaded the province of the jury.
Upon an appeal, every reasonable presumption is indulged in favor of the action of the trial court. These presumptions extend as well to the giving of instructions as to any other of' the proceedings. If, under any circumstances, the instruction would be correct, we are bound to presume that such a state of facts existed as warranted the court in giving the instructions. If such circumstances did not exist, the burden is upon the party complaining to overcome the presumptions of correctness. Elliott’s App. Proc., sections 709, 722; Wilson v. Atlanta, etc., R. Co., 82 Ga. 386, 9 S. E. 1076; Hinds v. Harbou, 58 Ind. 121.
In the briefs filed, on behalf of appellant, there is not a word in regard to the state of the evidence as to the facts so alleged to have been assumed by the court. Conceding without deciding, that the court did assume the existence of the facts that appellee had leave for two or three days to look after his own affairs, and that he did so; that he went for half a day to a fair, and for a like time to the races, without permission; that appellants subsequently had knowledge of these facts; that they made no objection or protest to him; *650that no complaint or claim was made on this account; and that appellee thereafter continued in the employment of appellants for some months, — in the absence of any evidence to the contrary brought to our notice by appellants, we have the right to presume either that these facts were admitted on the trial, or that they were proved by the appellee, and not controverted by the appellants.
We have not thought fit, however, to rest upon this presumption. Without any assistance from the briefs in the case, we have carefully searched every line of the 197 pages of the record and found that the evidence stood as follows: The plaintiff, Love, testified to the following facts:
“I put in all of the time, with the exception of three or four days that I gave an acount of, an agreement before I took those days off.” Record, page 80, lines 19-21.
“I was there” (at the fair) one-half day. Did not make any direct report of it. I told those aborrt the office, when I came to the office, that I had been to the fair.” Record, page 92, lines 11-16.
“I do not think I said anything about it,” (the races). “I was at the races one-half day. I saw and recognized one or two of the firm there.” Record, page 94, lines 21-26.
“I reported to the firm that I had spent a day or two at my own business.” Record, page 95, lines 5-10.
“The fair was a good place to go to to form acquaintances, or to touch up your old acquaintances whether they are contemplating anything of the kind. (Life insurance.) “I talked to two or three.” Record, page 100, lines 7-11.
The whole of the evidence, as to these facts, given on behalf of the appellants, was the following: J. Irving Riddle, one of the appellants, testified: “I didn’t tell him (Love) anything about the rule of the office.” Record, page 128, lines 2-3. And William A. Hamilton, the other appellant, thus testified: “Don’t remember any complaint about his not coming at 8 o’clock and 1 o’clock.” Record, page 174, *651lines 21-22. “Do not know that we made any specific complaints.” Eecord, page 183.
jSTowhere in the evidence are the foregoing statements of the appellee denied. The facts referred to by the court in the instructions were established by the uncontradicted testimony of the appellee, and the presumption of the correctness of the instructions is confirmed by an examination of the record.
The other points made in the petition for a rehearing were, as we think, correctly and fully decided in the original opinion.
The petition for a rehearing is overruled.