Trawick v. Trussell , 122 Ga. 320 ( 1905 )

Lamar, J.

(After stating the facts.) Neither the pleadings nor requests to charge raised any question as to the right to apportion an entire contract. Hill v. Balkcom, 79 Ga. 444. It may be involved in the assignment that the verdict is contrary to evidence. The plaintiff’s testimony showed that he was to receive $250 for a year’s work; that the employer became ill and unable to attend to business; that at the expiration of ten months the plaintiff, with the consent of the employer’s wife, left his service, and is now seeking to recover the value of his labor for that period. ' The rule laid down in Cutter v. Powell, 2 Smith’s L. C. 1, has been disregarded in some jurisdictions, doubted in others, and where followed is recognized as a harsh rule and not to. be extended. The evidence here is sufficient to warrant an apportionment. Civil Code, §§ 3643, 3644. The employer’s wife testified that she acted as agent for her husband during his illness, and consented for the plaintiff to discontinue work. The husband while on the stand did not repudiate her act in permitting the plaintiff to leave the farm at the end of the ten months. In effect he recognized and ratified what she had done. The evidence as to the disputed items in the plaintiff’s account, and as to the set-off by the defendant, was conflicting. There is nothing in the charge or the rulings of the court which requires the grant of a new trial.

Judgment affirmed.

All the Justices concur.