This is an action by a laborer to recover wages and was tried to the court without a jury. Respondent files no brief. The amended complaint alleges that between March 25, 1921, and November 25, 1921, plaintiff rendered services to the defendant at his special instance and request in the capacity of farm laborer. It is then alleged: *Page 301
"That defendant, on May 25, 1920, agreed, verbally, to pay to this plaintiff wages for the term of his employment at the rate of $100 per month. That on November 25, 1920, it was mutually and orally agreed between this plaintiff and defendant that said wages should be reduced, for the winter months only, to $75 per month. That on May 9, 1921, the defendant verbally agreed to pay this plaintiff salary for the entire period of time between March 25, 1921, and November 25, 1921, at the rate of $100 per month, upon the same terms as plaintiff had theretofore been employed, which terms included the board of this plaintiff for said period of time, free of charge."
The amended complaint then alleges that no payment has been made for services rendered by plaintiff for the period between March 25, 1921, and November 25, 1921, except the sum of $208, leaving a balance due of $592, $150 attorney's fees and $100 penalty is demanded under C. S., sec. 7381.
The answer admits the employment of plaintiff but denies there was any agreement as to the amount of wages plaintiff was to receive for the period sued for and sets up four several items of counterclaim. The trial court disallowed the counterclaims in toto and refused to assess attorney fees or penalty giving judgment against appellant for $272 and interest thereon from November 25, 1921, and costs. A motion for a new trial was interposed and denied, and defendant appeals from the order denying a new trial and the judgment.
It is assigned as error that the findings do not support the judgment and that the evidence does not support the findings.
An examination of the record discloses that the evidence does not support the findings made by the trial judge.
The judgment is reversed and the cause remanded, with instructions to grant a new trial. Costs to appellant.
William A. Lee, C.J., and Wm. E. Lee and Taylor, JJ., concur. *Page 302