Butterwick v. Peffer

Whitfield, J.

— On a declaration alleging the rendering- of personal service and labor, with a bill of particulars for five months and eleven days personal services, labor, work and attention at $75.00 per month,, totaling $402.50, with a credit of $7.95, leaving balance due $394.55, there were verdict and judgment for $402.50, and defendant took writ of error.

The evidence does not show the rendering of five months and eleven days of personal service and labor; and even if the credit of $7.95 was exactly overcome by interest on the amount claimed so as to justify a recovery of $402.50 for services rendered, yet as the evidence does not show the rendering of the service for the entire time stated the verdict is erroneous. The defendants’ testimony is not controverted, and is a defense to the action.

Judgment reversed.

Browne, C. J., and Taylor and Ellis, J. J., concur. West, J., dissents.