Judge "Walker, on trial in the court below, instructed the jury as follows:
“First. Under the law and the evidence in this case, *394I will direct you to find a verdict for the plaintiff to the amount of his claim, to wit, $165.50.
"Second. I do not say anything about the morality or the propriety of his leaving, or whether the plaintiff staid as long as he agreed to or not, but the evidence of Mr. Hasselman is that his alleged agreement was made in June, and it was not to begin until September 19th, and was to continue for one year from said September 19th, and by a verbal arrangement merely. That kind of an agreement, if made, would not be valid in law, unless it was in writing, and there could be no enforcement of that kind of a contract against the plaintiff in this case.
"Third. In addition to that, I do not think any damage has been shown resulting to the defendant in consequence of the plaintiff violating that contract, if there was any such contract. The defendant does not claim any increase of expenses to it on account of the plaintiff leaving, that it lost any work or job-work of any kind, but that the work was done with the same force it had when the plaintiff was with it. But assuming that the contract was made, it was not such a contract as could be enforced, because it was not to be performed within a year. I therefore instruct you to find a verdict for the plaintiff for $165.”
The only error assigned is that "The Marion Superior Court, in general term, erred in affirming the action of said court in special term.”
The errors assigned in general term were that the amended complaint did not state a good cause of action, and that the court erred in overruling appellant’s motion for a new trial.
The complaint was in several paragraphs. There was no demurrer or motion in arrest. It is admitted that one paragraph of the complaint states facts sufficient to constitute a good cause of action, and if it was conceded, as *395contended, that a reference to the evidence discloses that the verdict was based on the other paragraphs, yet, if the question sought to be raised was presented by the record, the alleged defects are such as were cured by the verdict.
In any view of the case, it clearly appears that sufficient facts are stated in the paragraphs against which objections are urged, to bar another suit for the same cause of action. Duffy v. Carman, 3 Ind. App. 207.
Counsel for appellant states the main question presented by the record as follows: “Is it possible for a plaintiff, who has broken a contract, to recover money •due upon that contract, and the defendant not be permitted to counterclaim his damages because the contract is unenforcible by operation of the statute of frauds?”
Should we adopt the views of the learned counsel in his able argument on this proposition, the judgment should nevertheless be affirmed. It is conceded, in evidence, that when appellee quit the service of appellant there was $165 due him for services previously rendered, and on a careful reading of the record, we have failed to find any evidence fairly tending to support appellant’s ■counterclaim for damages on account of alleged breach ■of contract for future services.
The court was fully justified in giving the first instruction, and also that part of the third instruction in relation to the counterclaim for damages. Kavanaugh v. Taylor, 2 Ind. App. 502.; Wabash R. W. Co. v. Williamson, 104 Ind. 154; Hall v. Durham, 109 Ind. 434.
If there was any error in the instructions in reference to the contract, and no damages could be recovered for the breach thereof, we could not reverse the judgment of the trial court on that ground, because it clearly appears, without controversy, that appellee was entitled to $165 for his services at the time he quit, and that no *396damages were sustained by appellant on account of the alleged breach of the contract by him. Perry v. Makemson, 103 Ind. 300.
Filed Dec. 19, 1893.Where, as in this case, the verdict is correct on the evidence, the judgment will not be reversed upon an erroneous instruction. Swaim, v. Swaim, 134 Ind. 596.
Whether any of the instructions are erroneous, we have not considered or decided, for the reason, as before stated, that we are of the opinion, after carefully reading the record, that the merits of the cause have been fairly tried and determined. Section 658, R. S. 1881.
Judgment affirmed, at appellant’s cost.