Turnow v. Hochstadter

Headnote

Contract— statute of frauds — pm'tial performance — amendment of complaint.

In February, 1878, a verbal agreement was made in Germany, by which the defendant’s firm employed the plaintiff to work for one year from the following May, at two dollars and fifty cents per day. Held, that as the parties intended the contract to be performed in this State, it was governed by the laws thereof (Andrews v. Pond, 13 Peters, 65; Story’s Conflict of Laws, § 280), and was, therefore, void by the statute of frauds.

Upon the trial of this action, brought to recover for services rendered under this contract, the court charged, that the plaintiff, by coming to this country and commencing work, in legal effect, said 1o the defendant, “If I work for you, it must be for a year, at two dollars and fifty cents per day,” and that the defendants, by their silence, accepted the offer. Held, that this was error; (hat the court erred; that the most that could be claimed was, that it was a partial performance of the contract, which did not take it out of the statute,' or furnish satisfactory evidence of a renewal of the contract. (Oddy v. James, 48 N. Y., 085 .) ■

Upon the trial the plaintiff was allowed to amend his complaint, so as to recover the actual value of the services rendered by him to (he defendant, on the ground that as the contract, upon which the action was brought, was void, he was entitled to recover the value of the services actually rendered. Held, that this was proper. That it was not substituting anew cause of action, but, in legal effect, conforming the pleadings to the facts.

Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made on the minutes of the justice before whom the ease was tried.