Cullen v. Battle Island Paper Co.

Kellogg, J.: The complaint alleged a hiring for three years, performance by plaintiff, and that the defendant had refused to perform said contract, and was indebted $1,000 thereon. At the close of the evidence defendant moved to dismiss the complaint upon the ground that the action was for wages, and not damages, and the proof shows there is nothing due for wages. Thereupon the plaintiff-asked leave to amend his complaint, which was denied upon the' ground that the court had not authority to make-the amendment, to which plaintiff.excepted. The complaint was thereupon dismissed. The evidence did not necessarily show an illegal discharge of the plaintiff. He was asked to resign but did not, and,then was informed that on account of different arrangements having been made no further work would be required of him, to which he suggested that lie-had a time contract, to which the defendant replied it made no difference, that his salary would be paid just the same. Upon this evidence the jury might well have understood that the plaintiff was relieved from actual service and was only required to hold himself in readiness to serve, and that Ins salary was to be paid; that he still remained within the terms of the contract in the defendant’s employ. The defendant recognized the continued binding force of the contract and its duty 'to continue its performance. In actions for breach of contract for service, the limit of recovery of damages is ordinarily the amount of wages agreed to be paid. (Milage v. Woodward, 186 N. Y. 252.) The payment of the wages, therefore, was the extent of the defendant’s liability, and if the defendant was willing that the plaintiff should remain idle,.- and the plaintiff assented, there is no reason why -lie should not recover wages' according to the terms of the contract. The statement that he need not work but should be paid, did away with the necessity of proving that he had actually performed the work which he was ordinarily to perform. The evidence tended to show that the plaintiff had performed any and all services which the defendant required of him under the contract.' The plaintiff was, therefore, entitled to go to the jury upon the pleadings as they then stood. (Dexter v. Ivins, 133 N. Y. 551, 553.) But after the court ruled that the pleadings as they stood were insufficient, it was then clearly within the power of the court, and it was its duty; no surprise being 115 alleged, to conform the pleadings to the proof and to make an end of the litigation. The object of pleadings is to promote the ends of justice, not to entrap a suitor in a maze of technicalities and uncertainties. Here evidence was -introduced without objection sufficient to allow a recovery for a wrongful discharge, if not for wages. “This power [under Code Civ. Proc. §723] may be exorcised by the court at the trial in furtherance of justice, and the statute which confers it has always received, in this court, a liberal rather than a narrow construction. When names were given to' actions it may be that the cause of action originally pleaded and that substituted at the trial would not be embraced in the same general classification, but that circumstance is not now very important. When a cause of action, however stated, is sustained by the same proof, the power of the court under this section to' conform the statement in the pleading to the facts proved is undoubted.” (Martin v. Home Bank, 160 N. Y. 190, 197.) In that case an amendment was made at the trial which changed an action brought to recover damages for the defendant’s failure to present a check within a reasonable time into one to recover the same money on the ground that plaintiff had paid it to the defendant by mistake. Whether we treat the action as one to recover the amount of wages-as damages on account of the illegal discharge, or as an action to recover wages under the contract, the recovery in either case rests upon the same facts. Whether the amount of the wages should be demanded as wages or as damages is a mere matter of technicality, where it is apparent that there.is no surprise and where all the facts necessary to recover upon either theory are before the court without objection. The judgment should, therefore, be reversed. Sewell, J., concurred; Smith, P. J., concurred in result upon the ground that the court had power to amend the complaint; Chester, J., dissented in an opinion in which Cochrane, J., concurred.