Sargent v. Linden Mining Co.

Citations

• 55 Cal. 204

Syllabus

<p>Instructions—Pleading—Variance.—In an action in indebitatus assumpsit, for work and labor done in and about the defendant’s mining claim, between the 6th day of June, 1876, and the 15th day of November, 1877—the complaint alleging in one count a promise to pay, and in another the value of the work—it appeared from the plaintiff’s testimony that there was no understanding or agreement as to how much he was to receive, or as to how he was to receive it, prior to July 5th, 1877; but the Court instructed the jury in effect that, if the plaintiff went to work upon the defendant’s mining claim, in June, 1876, under an express contract to receive reasonable wages out of the proceeds of his labor on the mine, without looking to the company personally, and.after doing preparatory and unremunei'Rtive work at considerable expense, was discharged by the defendant, without good cause, before he had taken out reasonable wages, then the defendant was liable to the plaintiff for such reasonable wages: Held, that the instruction was a substantial departure from the case made by the pleadings and the evidence, and could not be sustained.</p>