Mickle

Defendant appeals from a judgment and order denying his motion for a new trial.

The complaint, which is verified, charges that plaintiff performed work for defendant from the first day of December, 1887, to and including the twenty-third day of March, 1889, under an agreement whereby defendant agreed to pay him $100 per month, amounting to *598 $1,576.00f, of which sum part has been paid, leaving a balance of $l,000.73f still due.

There is also a count for $110, for money had and received.

The answer contains specific denials, and, among them, denies that defendant has not paid plaintiff in full, or that there is now due from defendant to plaintiff any sum whatever for work, labor, or services, or at all.

On the trial, the plaintiff, being a witness, testified that as defendant’s agent he carried on the business of butchering, and kept a shop and sold meat at the town of Hanford; that he managed the business himself, kept the books, paid himself out of the business as he saw fit; that he purchased cattle, made deposits in the bank, and drew it out on checks as required; that at the end of the year he added up what he had drawn for his own use, and either charged or credited…