Wells v. Law

PER CURIAM. Appeal from the judgment and an order denying a new trial. This action was brought to recover damages for the alleged breach of a written contract, which is set out at length in the complaint. Plaintiff alleges: That the defendants were engaged in business at San Francisco under the name of the Yiavi Company, the business consisting in the manufacture and sale of a nostrum or remedy known as “Yiavi” and other preparations, and furnishing [904]treatment by administering such preparations and by giving baths. November 17, 1891, defendants employed plaintiff and one Louise Keach in their said business, for the term of one year, on terms stated in the agreement. Plaintiff entered upon the performance of her contract, and, with the said Keach, was appointed by defendants as their agent in Alameda county. That, besides the consideration expressed in the agreement, the employees were to have the privilege of collecting for their own use from patients the sum of three dollars for each bath given in the treatment. That, with the consent of defendants, Mrs. Keach assigned to plaintiff her interest in the contract and business. That on the 29th of July, 1892, defendants took from plaintiff her business, and refused thereafter to furnish to her the remedies, or to permit her to conduct the business. That she thereby lost profits which she would have made under the contract, and the incidental profits from giving the baths. She recovered a verdict, and the defendants appeal.

1. After the defendants had answered, plaintiff, upon notice, asked leave to amend her complaint. The court granted leave to amend in the respects named in the notice, and also in respects in which no mention was made in the notice. It does not appear that defendants were injured by this order. Even on the trial, the amendments might have been on just terms. As no injustice was done to the defendants, we do not think they have any cause to complain.

2. The amendment complained of consisted in adding to the original complaint the allegation of the compensation for baths. Nothing is said in regard to this in the written contract. It is contended that this is adding to the written contract. Whether, by parol, an additional consideration can be established, under the circumstances, it is not necessary now to decide. It is not necessary to regard it in that light. It sets up an incidental advantage or profit which she was able to realize by reason of the contract, and which she lost by its breach on the part of defendants. It is in the nature of consequential damages. There was a very substantial conflict in the evidence upon all the issues in the case. Indeed, except as to the matter of damages, the preponderance seems very plainly in favor of the verdict. As to damages, no certain determination was possible. Plaintiff introduced evi