Tefft v. McNoah

Manning J.: On overruling a demurrer to a declaration, judgment goes for the plaintiff, unless leave is given to defendant to plead; which is usually done on the payment of costs when the demurrer has been put in in good faith. The court may attach such conditions to the order as the circumstances of the case, and justice between the parties, may require. The order and the conditions on which it is granted' are in the sound discretion of the court, and can not be reviewed on a writ of error. The action is properly brought in the name of McNoah for the use of Shepard. Moore’s testimony does not prove or tend to prove a promise made by Tefft to Shepard,, to pay him the $3,000, or any other sum. It was not introduced for that purpose, but to prove Tefft’s admission that $3,000 were due on the written contract. By the bill of particulars plaintiff’s action was confined to the written instrument. He could show no cause of action outside of it. Maginn’s testimony went beyond the written contract, in so far as he testified to McNoah’s con. tinuance in the employment of Tefft after the second of July, 1860, and from that day until November following. But there was no error in this, because .no claim was made by plaintiff for McNoah’s services: the only object of plaintiff being to prove by the witness that McNoah had continued in the employ of Tefft,. from the date of the written contract until the 2d, July, 1860, as the agreement required he should, to increase the amount to be-paid to Shepard on the second of July, I860, from $1,-700 to $3,000. This was the sole object of the testimony. Nor was it necessary for plaintiff to show that McNoah was indebted to Shepard in the sum of $3,000, as contended on the argument; .and if it was, we think it clearly appeared from the written agreement itself. The undertaking' on the‘part of Tefft' was to pay Shepard $1,700 on a certain day unconditionally ; and in case McNoah remained [207] in Ms employment up to that clay, then to pay Shepard the full.' sum of $8,000. The judgment must be affirmed. with costs. The other Justices concurred.