Dexter v. Ivins — 39 N.Y. St. Rep. 915

Majority

p. 915

Andrew J. Dexter, Resp’t, v. William Ivins et al., App’lts.

(Supreme Court, General Term, Second Department,

Filed July 2, 1891.)

Headnote

1. Pleading—Amendment.

In an action for wages where the complaint alleged performance by plaintiff, the answer was a denial. On the trial it was a question whether plaintiff had been discharged. The answer did not allege a discharge. Reid, that it was proper to allow an amendment of the complaint on the trial to conform to the proof, as under either form of action the amount of the recovery would be the same.

2. Master and servant—Evidence.

In an action by a traveling salesman for wrongful discharge, the' fact that plaintiff, had procured a stuffed order cannot be proved by a correspondence between the defendants and a stranger to the record, but the facts making it so must be proven.

Appeal from judgment in favor of plaintiff entered on verdict and from order denying motion for a new trial.

Action to recover wages alleged to be due under a contract of employment as a traveling agent for defendants.

Henry C. Bryan (James G. Burnett, of counsel), for app’lts ; James & Thomas H. Troy, for resp’t.

—The complaint asks a recovery upon an entire contract payable by instalments monthly. The answer admits the employment, and avers a willingness upon the part of the defendants to comply with the terms of the contract; but that the plaintiff failed to perform during the three months for which payments are claimed by him. Upon the trial it was a question whether or not the plaintiff was discharged. He did no work under the contract, and the defendants gave him none to do. Upon this state of the issue and the proof, the plaintiff was permitted to amend. his complaint so as to conform to the proof. This was proper. If there was no discharge, the plaintiff was entitled to recover. If there had been a discharge before the service was rendered, the action was in a questionable form. The defendants, however, had averred no discharge, but had framed .their answer so as to put the breach on the plaintiff. In either case the amount of the recovery was the same if the plaintiff succeeded.

The action was really tried upon the issue of performance by plaintiff, and the jury has found in his favor upon that point. The amendment was, therefore, harmless. The letter (Ex. 15), was properly admitted. It contained a copy of the plaintiff’s account.

It was not proper proof to be received on the part of defendants that they had had trouble with an order forwarded by the plaintiff. If the plaintiff had procured a stuffed order, facts were to be proven, and not a correspondence between the defendants and a stranger to the record.

It was not proper to put a question whether the plaintiff could perform his duty as salesman without samples. The facts as to the mode and manner of sale were fully proven, and the inference was for the jury.

p. 916

There are no exceptions to the charge which are well taken. They seem, to be based, upon the fact that the plaintiff had. been discharged, and the findings on the point were for the jury.

The judgment should be affirmed, with costs.

Dykhan and Pratt, JJ., concur.