Cousin v. Mason

California Court of Appeal May 21, 1926 No. Docket No. 3042.Published

Before: Plummer

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Holding. The court held that an objection regarding a variance between pleadings and proof is waived if not raised in the trial court through an objection to testimony or a motion for nonsuit. Furthermore, the court affirmed the judgment because the evidence supported the finding that the plaintiff was entitled to compensation for services rendered.

Issues

Whether there was a fatal variance between the allegations of the complaint and the testimony introduced at trial.
Whether an objection to a variance between pleadings and proof can be raised for the first time on appeal.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It is well settled that if a defendant desires to take advantage of a variance, it must be done either by objecting to the admission of the testimony or by motion for a nonsuit, and when such action has not been taken in the trial court, the objection is deemed waived and cannot be raised for the first time on appeal.”

“While the plaintiff counted upon the reasonable value of the services rendered, the proof tendered by him was to the effect that the price was agreed upon, to wit, $75 per month; but proof of such contract is admissible for the purpose of showing the reasonable value of the services rendered.”

PLUMMER, J.

Plaintiff had judgment for the sum of $475 upon a complaint, the charging part of which is in the following words:

“That plaintiff rendered services to defendants at their request as keeper and manager of the property commonly known as the ‘Brown Mansion,’ located in the County of Lake, State of California, from November 1, 1923, to June 13, 1924.

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“That said services were reasonably worth Five Hundred and Twenty-five dollars, ($525.00).”

From this judgment the defendants appeal.

The answer of the defendants denied the allegations of the complaint and alleged that during a portion of the year 1923, the plaintiff was employed as a cook at a salary or wage of $150 per month and that all of said salary or wages had been paid. The grounds relied on upon this ap- . peal are that there is no evidence to support the finding that the plaintiff rendered services as alleged in the complaint and also that there is a fatal variance between the allegations of the complaint and the testimony introduced at the trial. The testimony of the plaintiff was to the effect that he was for a short period of time during the summer employed as a cook for a salary of $150 per

month;

that at the close of the summer he had a talk with the defendants, in which it ivas agreed that the plaintiff was to remain upon the premises and care for the place. The plaintiff’s testimony in this particular is as follows:

“You remember this is the year 1923 that you spoke of, so as to keep the years straight. As I understand your statement you remained and worked for Mr. and Mrs. Mason during the months of September, October, November, December, of 1923, and January, February, March, April, May, up until June 14th, 1924? A. Yes, sir. . . . During the months of July and August I get $150 a month. The Court: After that how much did you get? A. After that I talk to Mrs. Mason, I say, ‘I go,’ she said ‘No, Granpa, you stay here, ’ I say ‘Mrs. Mason, if you want me to stay you have to pay me.’ ‘I agree to stay with you for $75.00 a month, if you want me to, and anything outside I charge you $5 a month more.’ She said, ‘We like to have a good man like you to care for the house, we have to go to Denver, maybe we have to go Monday, we have to have somebody watch the house,’ and I agreed to stay there. The Court: For how much? A. $75.00 a month and $5.00 to do any kind of work outside.”

Cousin v. Mason

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PLUMMER, J.

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