Sargent v. Linden Mining Co.

The complaint in this case contains two counts, the first averring that on the 15th day of November, 1877, the defendant was indebted to plaintiff in the sum of $873.43, balance due on an account for work and labor done and services rendered by plaintiff to the defendant, at defendant’s special instance and request, in and about a certain mining claim, between the 6th day of June, 1876, and the 15th day of November, 1877; and the second being substantially the same, with the additional *205 averment that the work and labor done and services rendered were reasonably worth the sum of $873.43. The case was tried before a jury, and a verdict was rendered in favor of plaintiff for the amount claimed. The appeal is taken from the judgment, and order of the Court denying defendant’s motion for a new trial. Numerous errors are assigned on the appeal, only one of which will be noticed, and that is sufficient to call for a reversal of the judgment.

When the evidence was closed, and before the cause was submitted, the Court below, at the request of the plaintiff, gave the following instruction to the jury :

It seems to us that the theory of the plaintiff’s case, suggested and presented by…