Fenton v. Mansfield

Hall, J. There are but four reasons of appeal assigned in this case. They are: first, the denial of the defendants’ motion for a new trial, upon the ground that the verdict was against the evidence; second and third, the instruction given the jury by the language of those parts of the charge complained of, as above stated; and fourth, in admitting the question asked the witness Fields. It appears from the evidence to have been undisputed that the plaintiff was to continue the services, for which she claimed Mrs. Boardman promised to pay her the additional $5,000, during the lives of Mrs. Boardman and of Mrs. Wade, instead of until the death of Mrs. Boardman, as alleged in the complaint. This discrepancy did not amount to a total failure of proof of the alleged cause of action. A mere variance, though material, could have been cured by amending the complaint in the trial court. Practice Book (1908) p. 245, § 149. But the question of variance is not properly presented by the record. No such question was raised in the trial court. It does not appear that any objection was made to *349 proof that the consideration of Mrs. Boardman’s alleged promise was that the plaintiff should continue her services during the life of both Mrs. Boardman and her sister, nor that the court was requested to instruct the jury that such proof was variant from the allegations of the complaint. If the statement in the finding, among the facts which the defendants claimed were proved by the evidence, that “there was a fatal variance between the allegations and the proof,” can be regarded as a claim of law actually made to the court to obtain a ruling upon the question of variance, it was insufficient for that purpose, since it failed to specifically state the claimed variance. Woodruff v. Butler, 75 Conn. 679, 681, 55 Atl. 167. As the particular facts which are claimed to materially differ from the allegations of the complaint were not in dispute, the question whether they constituted a variance was one of law for the court. Morris v. Bridgeport Hydraulic Co., 47 Conn. 279, 288. There is no claim in the reasons of appeal that the court erred in charging, or in failing to charge, upon the question of variance. If, without disregarding the instructions of the court, the jury based its verdict upon undisputed facts which were variant from the averments of the complaint, the fault was not theirs, and a motion for a new trial for verdict against evidence is not a remedy for the variance. The defendants made twenty written requests to charge in the trial court, but no failure to charge as requested is made a reason of appeal. Indeed, the only serious question presented in this court arises upon the alleged error of the trial court in denying the motion for a new trial, upon the ground that the verdict was against the evidence, and that question is whether the evidence showed that the 85,000 in question was intended by Mrs. Boardman as a gift to the plaintiff, or as an agreed compensation for her services. The trial court clearly instructed the jury that if they found that it was intended as a gift, the plaintiff could not recover, and with equal clearness that the plain *350 tiff’s case, which, to enable her to recover she was required to prove by a preponderance of evidence, rested upon a claim for compensation arising out of a claimed contract or agreement entered into between the plaintiff and Mrs. Boardman, whereby Mrs. Boardman, in consideration of the plaintiff’s services rendered, and to be rendered, promised to pay the specific sum of $5,000. The court said to the jury: “It is upon this alleged agreement that the plaintiff bases her claim and rests her case, and as this is a vitally essential feature of the matter, I stop long enough to impress upon you here that to furnish the basis for a recovery here there must have been some valid and binding agreement between the parties, an offer and an acceptance, with consideration, and a mutual understanding and agreement by the parties of and to the binding terms of the undertaking.” Among the circumstances which it is urged support the claim that Mrs. Boardman intended by her said acts to make a gift to the plaintiff of the $5,000, and not to pay it as compensation for services, are the facts that the plaintiff, during her entire term of service, was paid her regular wages; that the sum of $5,000 was a large one to be paid as additional compensation considering the services rendered, and the sums already paid or promised; and that in the letter left with Mr. Fields with the note Mrs. Boardman says, “This is intended as a gift . . . .” On the other hand, in support of the claimed agreement to pay this sum as additional compensation, it is claimed that the evidence shows that the weekly compensation paid to the plaintiff was inadequate, and was admitted by Mrs. Boardman to be inadequate for the services rendered; that Mrs. Boardman said to Mr. Fields and to the plaintiff that the plaintiff’s services were invaluable, and that “ she could not begin to compensate her for what she had done for them”; that Mrs. Boardman told the plaintiff that if she would stay with her and her sister during their lives, she would give her additional compensation, *351 and that the $5,000 was given, or promised to be paid, in fulfillment of that agreement; and that Mrs. Boardman states in the note for the $5,000 that it is for “value received.” The question whether the $5,000 was intended as a gift or as a payment under such an agreement was fairly submitted to the jury, and they must have found that it was intended as compensation, and not as a gift. The trial judge, who heard the testimony and observed the witnesses, has refused to set the verdict aside. We do not find that he erred in such refusal. The criticism of those portions of the charge set forth in the second and third reasons of appeal, upon the grounds that they contain a misstatement of the rule of the burden of proof, as applicable to this case, and an instruction that the plaintiff could recover on a quantum meruit although no evidence was offered regarding the value of the services rendered, and a ruling that the $5,000 note could be regarded as a guaranty, are not justified. These portions of the charge must be read in connection with the remainder of the charge. We have already said that we interpret the charge as clearly instructing the jury that the plaintiff could not recover without proving that there was an agreement to pay the $5,000 as additional compensation for services. In speaking of the note as a “guaranty,” that word was evidently not used in its legal sense, but as meaning that the note might be regarded, in connection with other evidence, as a written statement of Mrs. Board-man that there was an unpaid balance for services under a special agreement, and as a statement made to enable the plaintiff to collect the balance “honestly due to the plaintiff for her services” under such agreement. There was no error in admitting the question asked the witness Fields. There is no error. In this opinion the other judges concurred.