after stating the ease. Wo are at a loss to know upon what ground this ruling is made, unless it be, and this we infer from the argument here, that the pkiintiff was bound to go on and show that services, such as appertain to the double offices, wore rendered during the interval covered by his claim, to entitle him to a verdict, and that none had been proved. If so. we do not. concur in-this view.
*465The defendant’s answer admits the plaintiff’s allegation of his election at the time mentioned, and his entering at once upon the discharge of his official duties, and, in the denial that the plaintiff “ continued to act as secretary and treasurer as aforesaid until the 10th day of: August, 1882,” for that “ he ceased to - act on the 17th day of May, 1882, when the books, accounts, notes and other valuable papers of the company "were delivered to the president,” admits also under the rules of pleading the continued discharge of those duties up to the earlier day specified. There was no necessity for producing evidence in the face of this concession of the rendition of services during the undisputed interval. But there is no denial in the answer of the plaintiff’s faithful performance of every imposed duty, nor any suggestion in the answer of dereliction, except in the alleged appropriation of moneys of the company received to his own claim against it.
It is not material how onerous or light the required services were, for the compensation to be paid for them is fixed at a definite sum, and this the company contracts to pay. It is quite sufficient that the plaintiff held the offices, kept the papers of the defendant, gave, the bond for his personal fidelity, and so performed the services undertaken as to be retained in office and without complaint while discharging them, or even now made, except in the particular mentioned, in the answer and defence set up to the action.
If there was any objection to the manner and kind of service, none, was supported by evidence, for the defendant declined to offer any.
The counsel for defendant here contends that the compensation is per diem and dependent upon' each day’s work, ceasing when none was done and requiring proof of performance.
No such condition is found in the by-laws which constitutes the contract, for, there, the compensation is continuous though measured by the day, and it is expressly spoken.of as a salary in the clause declaring that no additional compensation shall be *466paid for discharging the duties of treasurer, when that office is united with that of secretary — that allowed the latter being for both.
The presence of such a condition in the provision for paying the president, that it shall be “two dollars-per day while in actual service,” and. the absence of it in that relating to the secretary, plainly indicates an intention to establish a different rule for the latter. As long, therefore, as the defendant retained the plaintiff’ in its service it is bound to pay him the stipulated compensation.
The defendant has not undertaken to sustain the allegations imputing official misconduct to the plaintiff', in misapplying the funds in his possession to his own .use in reducing his debt, and as they are deemed to be controverted (C. C. P., §127), they must be put out. of the way. The charge itself is rather of an attempt thus to apply the moneys in his hands than a malfeasance and mismanagement; and this is covered by the bond. It is only available, if available at all in this proceeding, as constituting a counter-claim, the sum misapplied; and this result is secured by the credit voluntarily given by the plaintiff’ himself. It cannot be a defence to the action and be permitted to extinguish all liability incurred by the defendant to pay for services rendered, while it seems to have been so intended.
• We do not undertake to determine for how long a time the plaintiff is entitled to claim his per diem salary or compensation, but there is error in denying him any upon the proofs offered.
The nonsuit must set aside and a new trial awarded, and it is so ordered. This will be certified to the superior court.
Error. • . Venire de novo.