Hilbert v. Kundikoff

THE COURT.

Defendant appeals from a judgment rendered against him in an action to recover the reasonable value of work performed and services rendered at his special instance and request and for his benefit.

Comparatively little aid can be obtained from a study of the. appellant’s brief as most of it is devoted to various discussions between court and counsel, whereby appellant seeks to show that the trial judge at some state of the proceedings, after the close of the testimony entertained views at variance with his findings. Though we do not consider this material to our inquiry in view of the fact that we assume that the court’s conclusions are truly reflected in the findings, yet we have carefully noted the tenor of the trial judge’s remarks and find nothing therein that could have, in any way, misled appellant or given him a security that might at all have affected the presentation of his case in full.

The original complaint alleged as follows: That for seven years continuously and without cessation, ending on June 1, 1925, at the special instance and request of defendant the plaintiff, for the benefit of defendant, performed work and rendered services. That the reasonable worth of said work

[87]

performed and services rendered was five thousand dollars, and that no part thereof had been paid, etc. The answer was a specific denial. After a somewhat lengthened trial the court permitted plaintiff to amend the complaint to conform to the proof. After amendment, the complaint was practically the same as before, the dates being somewhat different in that the amended complaint alleged the services and work to have commenced in June, 1921, and ended in June, 1925.

There was, however, this additional allegation in the amended complaint, viz., that on June 13, 1925, said defendant, in consideration of the work, etc., performed, promised and agreed to pay plaintiff the reasonable value of the said work and services.

It is appellant’s contention that the court erred in permitting this amendment on the ground that thereby a new cause of action was stated. We find no merit in this contention. At all times the cause of action remained the same, namely for work performed and service rendered. The remedy sought was at all times the same. It is difficult to see the need of the amendment or its propriety. If under the cause of action stated in the original complaint proof sufficient were offered it would follow as a matter of law that judgment would go for the plaintiff, the law itself finding the promise to pay therefor. If under the complaint as amended it was found that no service was rendered or work performed, the promise to pay therefor would have been insufficient to sustain the judgment.