Norwich & Worcester Railroad v. Kay , 22 Conn. 603 ( 1852 )

Hinman, J.

The plaintiff in the court below, at the time when he performed the service for which he claimed to recover in this action, was the book-keeper of the defendants, and, as such, was entitled to a regular salary. The case turned upon whether he was bound to perform this service, as a part of his duty, as book-keeper, or, whether it was extra service, for which he was entitled to extra compensation. The bill of exceptions gives a history of the dealings between the plaintiff and the defendants, from the year 1847, when he first entered into their service, down to November or December, 1852, when the connection terminated. During the time when the plaintiff was thus employed by the defendants, they had, on two or three occasions, paid him an amount equal to the sum charged by him in this instance, for extra service of precisely the same character as that for which he claimed to recover, in this action. The court found the service to have been reasonably worth the sura charged for it; and, relying, as we suppose, principally upon the previous dealings of the parties, as evidence of their understanding and agreement, that the services should be paid for, as extra service, rendered judgment in favor of the plaintiff, for the amount charged in his bill. It is appa rent, from this statement, that no question of law arises upon the bill of exceptions. The question is, whether the court drew the correct inference, as to the agreement of the parties ; and that is wholly a question of fact. There is no claim, that any improper evidence was received, or that it did not conduce to prove the facts which must have been found by the court. But the claim is, that, taking the whole evidence'recited in the bill of exceptions together, the court came to a wrong conclusion. If this was so, we could not review it, on this application : the finding of the court is as conclusive, on a matter of fact, as the finding of a jury. Besides, the defendants attempt, in this way, to bring up the whole case for review, on a bill of exceptions, which has often been held to be irregular. Shelton v. Hoadley, 15 Conn. R., 535. On both these grounds, the court advise the superior court, there is no error in the judgment complained of.

In this opinion, the other judges concurred, except Ellswoeth, J., who tried the cause in the court below, and was disqualified.

Judgment affirmed.