Mooneyham v. Cella

BARCLAY, J. — Plaintiff’s action is for breach of a contract of employment. The petition alleges that plaintiff was an attorney at law,’engaged in practice in St. Clair county, Illinois; that defendant employed plaintiff to perform certain legal services, etc. As there is a question discussed on this appeal concerning the effect of the allegations of employment, we quote that part of the petition, as follows: “The said defendant, Louis Celia, did engage and employ the plaintiff as such attorney at law to do and perform certain legal services for and in behalf of said defendant in said St. Clair county, State of Illinois, to-wit: to represent and prosecute for and on behalf of the said State in certain prosecutions wherein the said State was plaintiff and’ Canty and others were defendants, and wherein said defendants were charged with the offense and crime of pool-selling at Lake Bridge in said St. Clair county, State of Illinois, which was against the laws of said State, and to do and perform all things necessary and requisite in procuring all evidences representing the said State in court in the said prosecutions of said parties for said crime of pool-selling, and the said defendant, [264] Louis Celia, then and there agreed and contracted with plaintiff to pay plaintiff for the said legal services to be so performed the sum of fifteen hundred dollars as a fee for such services and labor, and the said defendant then and there, on said day of September, 1899, did pay to plaintiff the sum of three hundred dollars cash on account of said fee, and then’and there agreed to pay the balance of said fee or the sum of twelve hundred dollars, as soon as said prosecutions ended and pool-selling was stopped at Lake Bridge, in said county.” The petition then alleges that plaintiff performed all the acts and services which he agreed to do, and gives the particulars of performance at some length. The petition further states that a balance of $1,200 is due on account of the contract and prays judgment with interest from October 1, 1899, at which time a demand of payment is alleged to have been made. The amended answer contains a general denial, and a plea that a third party is jointly interested with plaintiff as a partner in the claim sued upon. As. no question is presented here upon that plea, nothing more will be said about it. The cause was tried before Judge Spencer without a jury. No instructions were asked or given. There was a finding and judgment for plaintiff in the sum of $1,233.48. After an unavailing motion for new trial defendant appealed to this court. Twe errors are assigned as follows: “First.' The court should have held that there was a fatal variance between the allegations of the petition and the proof adduced by the plaintiff at the trial. “Second. The court should have held that there was a total failure of proof of performance of the alleged contract by the plaintiff.” I. We have examined the record and find that the testimony for plaintiff fully sustains the allegations of the petition above quoted. It does not appear necessary to recite in [265] this opinion the particulars of the evidence. We do not discern any variance between the pleading and proof in this case, while fully recognizing the proposition that a plaintiff must substantially prove the contract which he has alleged (subject to certain qualifications of that rule which we need not go into now). Another serious difficulty which appellant encounters in this phase of the case is in the rule which requires some sort of objection to be made to a supposed variance or want of conformity of the proof to the pleading. Where no objection or exception is preserved at the trial to such a deviation from correct practice it can not be made ground for a reversal. Chouquette v. Railway, 152 Mo. 257. II. The evidence of plaintiff tfends to show full performance of the contract on his part, and tends further to prove that defendant admitted such performance. And the trial court found there was a full performance by plaintiff. III. The respondent asks for damages in this court on the ground that the appeal is frivolous. The law warrants the allowance of damages here not exceeding ten per cent on the amount of the judgment. The only guide given by the statute on the subject is that the court shall consider the allowance of damages to be just (R. S. 1899, sec. 867). Where the assignments of error do not present any fairly debatable or unsettled question of law or fact, we consider an award of such damages to be just and proper. In this instance the judgment will be affirmed with five per cent damages. Bland, P. J., and Goode, J., concur.