The judgment should be reversed. Whether or not a verdict for the reasonable value of services rendered may be permitted, where both parties plead and prove that they were rendered under an express contract, complete in all of its terms, and disagree only as to whether the contract was one of employment or one of partnership, is the question. It is undisputed that plaintiff rendered services, but he claimed and attempted to prove that he rendered them under an express contract of employment for the season at a fixed compensation, while defendant claimed and attempted to prove that he rendered them under a contract on a share basis for the year. That was the only litigated question. Some evidence relating to the wages of laborers in the vicinity was elicited by the court, without objection. The complaint was not amended. Apparently, defendants did not appreciate the purpose when the questions were asked, but they excepted when *18the court, in the charge, instructed the jury that they might render a verdict for the reasonable value of the services, if they found that the parties had not made any contract. That was a permission to the jury to make a different contract and was a submission on a theory inconsistent with and not permitted by the pleadings and the proof. (Romeyn v. Sickles, 108 N. Y. 650, 652; Minuth v. Barnwell, 106 App. Div. 437, 442; Donovan v. Harriman, 139 id. 586, 588; Dennison v. Musgrave, 29 Misc. 627, 629.)
The judgment should be reversed on the law and the facts and a new trial should be granted, with costs to abide the event.
Van Kirk, Acting P. J., Hinman, McCann, Davis and Whitmyer, JJ., concur.
Judgment reversed on the law and facts and new trial granted, with costs to the appellants to abide the event.