Opinion of the Court.-FULLERTON, C. J.

[31 Wash.

throughout the entire fishing season, that he failed and refused to do so, and that the appellant was damaged thereby in the sum of $1,000. The verdict of the jury was for the amount demanded in the prayer of the complaint, namely, $1,099.34-six dollars in excess of the total of the several items set out in the complaint which made up the demand.

The first error assigned is on the ruling of the court refusing to sustain the appellant's motion to withdraw from the jury all the evidence relating to the claim for damages for the alleged delay in securing transportation for the respondent, his assistant, boat, and gear from Taku Harbor to Seattle. This motion was based upon two grounds: First, that the contract did not obligate the appellant to return the respondent to Seattle before the close of the fishing season, which event had not happened at the time the respondent demanded transportation; and, second, because the complaint did not, on this branch of the case, state facts sufficient to constitute a cause of action. The written memorandum it will be noticed, does not in terms provide a time when the respondent was entitled to be returned; but the writing does not, on the theory of either party, contain all of the contract. Evidence was introduced without objection on the part of the respondent tending to show that he refused to sign a contract obligating himself to stay until the close of the fishing season, and on the part of the appellant to the effect that such was the contract, and that it was understood that the respondent agreed to wait and return on the appellant's own steamer. The court submitted the questions to the determination of the jury, we think, rightly. When the parties themselves try their case upon a certain theory, they cannot afterwards complain that such theory is incorrect. The second

Mar. 1903.] Opinion of the Court.-FULLERTON, C. J.

ground for the motion was equally untenable. While the allegations of the complaint were not as broad and full as they might have been, still they were sufficient under this form of objection. They advised the appellant of the amount claimed as damages and of the nature of the demand. If the appellant wished for a fuller or more particular statement, it should have attacked the complaint before joining issue of fact thereon.

It is next contended that the court erred in admitting evidence tending to show the average earnings of fishermen engaged in fishing in the waters of Puget Sound during the month of September, 1901. It was shown that the respondent was a fisherman, and that it was his purpose, when he returned from Alaska, to engage in fishing in Puget Sound during the remainder of the fishing season; and this testimony was offered as a basis for estimating the damages sustained by him because of the delay of twentythree days at Taku Harbor. It said that this evidence is too remote and conjectural to form a basis for estimating damages for that delay, and the case of North American T. & T. Co. v. Morrison, 178 U. S. 262 (20 Sup. Ct. 869), is cited as sustaining the contention. In that case it was held that the defendant, a transportation company, could not be held for wages which the plaintiff suggested he might have earned had the defendant fulfilled its contract and carried him to his place of destination at the time. agreed upon. In the opinion stress was laid on the fact that the plaintiff had never been at the place where the company contracted to carry him; that he had no previous engagement or business there, or any promise of employment; that it was not shown what his occupation was, or what occupation he expected to follow at the point of destination. "The plaintiff was traveling to a land of

Opinion of the Court.-FULLERTON, C. J.

[31 Wash.

promise, hoping to there procure some occupation, he knew not what, or to engage in some business, he knew not what. The result of such an adventure cannot be foretold, and the plaintiff's anticipations afford no safe ground on which to base a claim for damages." In the case before us the conditions were different. Here the respondent had a fixed occupation, was the owner of appliances which enabled him to engage in that occupation, and was going to a place where employment at his particular occupation was certain. The amount of wages he might earn was, of course, uncertain, but wages of fishermen similarly situated furnished a test by which to determine the amount, and evidence of that character was admissible. Ransberry v. North American T. & T. Co., 22 Wash. 476 (61 Pac. 154).

It is next objected that the verdict is not sustained by the evidence, in that it is too large. As we have shown. the verdict is in excess of the amount that the respondent was entitled to recover, because in excess of the amount claimed. Were this the only fault, however, we would not reverse the case because of it, but would remand it, with directions that the excess be remitted. But the respondent was permitted to recover for the wages of his helper at the rate of three dollars per day while detained at Taku Harbor, on the showing that the helper was a fisherman, and could have earned that sum by fishing in the waters of Puget Sound. This was error requiring reversal. The respondent could, of course, make such contract with his helper as he pleased, or pay him for his services such sum as he pleased; but when he sought to recover from the appellant for such services as a part of his damages he could recover only such sum as the services were reasonably worth, not what he paid or agreed to pay

him nor what the helper might have earned elsewhere, unless these amounts were the reasonable value of such services. While there was evidence tending to show that the services of a helper were necessary in in caring for the boat and gear while detained at Taku Harbor, there is no evidence which tends to show what such services were reasonably worth, and the verdict is, therefore, under the evidence, too large by the amount the jury may have allowed for the same.

Other errors assigned are disposed of by what has been said in the discussion of those specially mentioned. The judgment is reversed, and the cause remanded for a new trial.

MOUNT, DUNBAR and ANDERS, JJ., concur.

[No. 4372. Decided March 10, 1903.]

THE STATE OF WASHINGTON, Respondent, v. MICHAEL SMITH, Appellant.

CRIMINAL LAW SUFFICIENCY OF INFORMATION

FAILURE TO CHARGE STEALING AS FELONIOUS.

GRAND LARCENY

An information charging grand larceny by alleging that defendant did "unlawfully steal, take, and carry away $785.00," etc., states a crime within the definition of Bal. Code, § 7108, which defines grand larceny as the feloniously stealing, taking, and carrying away of the property of another of the value of thirty dollars or more, since the use of the word steal implies a felonious taking, and hence is sufficient, under Bal. Code, §§ 6849, 6850, 6851, which provide that words may be used in an indictment or information conveying the same meaning as those used in the statute to define the crime; that the indictment or information is sufficient if it can be understood therefrom that the crime charged is set forth in ordinary and concise language, in such a manner as to enable a person of common understanding to

Opinion of the Court.-MOUNT, J.

[31 Wash. know what is intended, and that matters formerly deemed defects should not affect the sufficiency of the information, when not tending to the prejudice of the substantial rights of the defendant.

Appeal from Superior Court, Ferry County.-Hon. CHARLES H. NEAL, Judge. Affirmed.

G. V. Alexander, for appellant.

M. E. Jesseph, Prosecuting Attorney, and L. C. Jesseph, for the State.

The opinion of the court was delivered by

MOUNT, J.-The appellant was convicted of the crime of grand larceny, and appeals from the judgment of conviction. The information, omitting the formal parts, was as follows:

"Comes now M. E. Jesseph, prosecuting attorney of Ferry county, state of Washington, and by this information accuses Michael Smith of the crime of grand larceny committed as follows: He, the said Michael Smith, on the 7th day of October, 1901, A. D., in the county of Ferry, state of Washington, then and there being, did then and there unlawfully steal, take and carry away $785, lawful money of the United States, the same being gold and silver coin of the property of one Frank O'Brien, with intent to defraud him, said Frank O'Brien, of his property, contrary," etc.

No demurrer was filed to this information. A plea of not guilty was entered, and a trial was had before a jury, which returned a verdict of guilty as charged. Motions for a new trial and in arrest of judgment were thereafter filed and denied by the court, and a judgment entered sentencing defendant to one year in the penitentiary.

The question presented by these motions and on this appeal is that the information does not state a crime be