McAllister v. Union Indemnity Co.

PRESTON, J.

The question here is whether the relief afforded plaintiff was within the scope of the issues framed by the pleadings in the cause.

[459]

The amended complaint alleged breach of an oral contract for employment of plaintiff by defendant for one year from August 16, 1928, at an annual salary of $11,000, through the wrongful discharge of plaintiff on September 15, 1928. The answer, among other things, alleged as a third separate defense that said contract, if any, was mutually canceled on said September 15th. The court found this to be the fact and that upon said mutual termination of the employment defendant agreed to pay plaintiff $500 removal expenses and an amount equal to six weeks’ salary at the rate of $11,000 per annum; that the $500 was paid but the salary amount was not- paid. The court expressly failed to find on other issues and judgment followed for plaintiff in the sum of $1683 and costs. Defendant appealed.

It is appellant’s contention that plaintiff sued on one contract (the contract of employment) and, without amending his complaint, recovered upon another (the cancellation contract), thus preventing the interposition of defenses available against the latter contract but not available against the former, and allowing plaintiff to recover by proving his own cause of action to be groundless and asserting a right to affirmative relief based upon an issue raised by his own denial.

This contention is technical and does not reach the case on its merits. Examination of the record shows that the evidence supports the findings and there has been no miscarriage of justice. Appellant was not taken by surprise or misled to his prejudice by variance between pleadings and proof. At the close of plaintiff’s case, at the time of denial of appellant’s motion for nonsuit, plaintiff’s counsel intimated his willingness to amend the complaint, whereupon the court stated: “You can consider it, and in the meantime, we will go ahead with the trial. ’ ’ The trial proceeded as though all matters touching said cancellation agreement were fully at issue and testimony bearing upon it was freely introduced. No further effort was made to amend the complaint; the motion for nonsuit was not renewed nor did appellant avail itself of an opportunity tendered by the court to move to strike out any portion of the answer.