Standard Bitulithic Co. v. Curran

ROGERS, Circuit Judge (after stating the facts as above). The complaint sets forth with particularity in its first cause of action a contract, the performance by the plaintiff of certain services thereunder, the failure of the defendant to pay for such services, and a demand for judgment; in its second cause of action the complaint sets forth the same work, labor, and services as in the first cause of action, and demands judgment upon quantum meruit; and in the third cause of action the same contract is alleged as is set forth in the first cause of action, and damages for its breach are demanded. The allegations of the complaint are denied by the answer. A question of fact was thereby created, which was submitted to the jury, and that body has found a verdict in favor of the plaintiff, which is not to be disturbed, but must be accepted as conclusive, unless errors of law have been committed which require a reversal. It is alleged for error that during the progress of the trial the court permitted an amendment of the pleadings to conform the pleadings to the proof. Courts, in the exercise of their common-law jurisdiction, may in their discretion permit pleadings to be amended at any time before verdict, if such amendment does not surprise or prejudice the opposite party. The authorities differ upon the question whether a court, in the exercise of its common-law jurisdiction, may of its own motion and without application by one of the parties order an amendment to be made. The Code of Civil Procedure of the state of New York (§ 723) provides as follows: “The court may, upon the trial, or at any other stage of the action, before or after judgment, in furtherance of justice, and on such terms as it deems [71] just, amend any process, pleading, or other proceeding, * * * by Inserting an allegation material to tile case; or, where the amendment does not change substantially the claim or defense, by conforming the pleading or other proceedings to the facts proved. And in every stage of the action the court must, disregard an error or defect, in the pleadings or other proceedings, which does not affect the substantial rights of the adverse party. * * * ” In the instant case the court did not amend on its own motion, although under the statute it would seem to be possessed of power to do so; but it allowed the amendment to be made after counsel for plaintiff stated that he wished the amendment to be made. The first cause of action was amended, so as to state that the plaintiff is entitled to a commission of 3 cents a square yard, on the yardage on all sorts of pavement and kinds of pavement laid in the borough of Queens and the borough of Richmond; in the borough of Queens 330,000 square yards, and in the borough of Richmond 140,480 square yards. This was objected to on the ground of surprise, as the complaint contained nothing to show that plaintiff claimed anything outside of the War-renite and bitulithic contracts which he secured. The plaintiff was also allowed to amend the first cause of action as to the time when the contract was to commence. The complaint was amended to state: “That the contract: dated on the 2d day of September, DUO, was that the term of employment was for the term of the Warrenite and bitulithic patents, approximately 9% years, to commence September, 1910, with the option to the plaintiff and an option to the defendant to terminate such contract within 6 months thereafter, if the services of the plaintiff were unsatisfactory, or the position was unsatisfactory to the plaintiff.” The statement in the original complaint was as follows; “That on or about the 2d day of September, 1910, in the city and county oP New York, the plaintiff and the defendant mutually entered into a contract wherein and whereby the defendant, for a valuable consideration, appointed the plaintiff its agent or promoter for a period of about 9 years; said period to commence at a dato G months subsequent to the said 2d of September, Í910. should the plaintiff’s services prove satisfactory during the said period of said 6 months, immediately following the said 2d viay of September, 1910, said period of 9 years being coextensive with the life of certain patents. * * ~ ” The first of these amendments may now be disregarded, as the defendant has not been prejudiced thereby; for the court, after the verdict, stated that he did not think there was any evidence to support the verdict as to the claim for pavements in Richmond and Queens, and added: “I will either permit you to set the verdict aside, or shut out that parr or the damages which relate to Richmond and Queens.” Plaintiff’s counsel consented to that, and the verdict was reduced from $8,527.20 to $5,640.50. [1] So far as the second amendment is concerned, it was quite within the power of the court to make it, and error cannot be predicated upon it. The amendment was in tho furtherance of justice, and worked no prejudice to the other party. In actions ex contractu, so long as the plaintiff adheres to the original contract on which the com [72] plaint is founded, an amendment is not objectionable which merely states more fully and accurately the facts with reference to the contract or changes the alleged date of the contract. See Stevenson v. Mudgett, 10 N. H. 338, 34 Am. Dec. 155; Pickett v. Southern R. Co., 74 S. C. 236, 54 S. E. 375. [2] It is said, however, that plaintiff cannot recover, as the contract was not in writing, as required by the statute of frauds, and that the statute is applicable alike to the contract alleged in the original complaint as well as to that in the amended complaint, as it is clear that the' contract coúld not he fully performed within one year. We need not concern ourselves with the contract as stated in the original complaint. The question for this court is whether the contract as stated in the amended complaint is or is not within the statute. The rule in England is clear that an option to determine at any time a contract for á designated period exceeding a year has no effect in taking the case out of the statute of frauds. Birch v. Liverpool, 9 B. & C. 392; Dobson v. Collis, 1 H. & N. 81; Pentreguinea Fuel Co., Pegg’s Claim, 4 De G. F. & J. 54. And see Reed on Statute of Frauds, vol. 1, § 202. But whether such an option contained in a New York contract is within or without the statute depends upon the construction given to the statute by the courts of that state. In Blake v. Voight, 134 N. Y. 69, 31 N. E. 256, 30 Am. St. Rep. 622, a contract required the plaintiff to procure consignments of goods to the defendants during one year from December 1, 1888, and that the defendants should pay the plaintiff a commission therefor; but it permitted either party to terminate it in June, 1889. The court said: “The statute applies to ‘every agreement that by its terms is not to be performed within one year from the making thereof.’ 4 R. S. (8th Ed.) p. 2500, § 2. As it was the design of the statute not to trust the memory of the witnesses beyond one year, it has been repeatedly held that it does not apply to a contract which, consistently with its terms, may be performed within that period. The contract in question, therefore, as we construe it, is free from the restraint of the statute. This conclusion finds support in the adjudged cases, which, although uniform in tMs state, are somewhat at variance in other jurisdictions.” [3] This court will follow a decision of the New York Court of Appeals, construing a statute of the state of New York. D’Wolf v. Rabaud, 1 Pet. 476, 502, 7 L. Ed. 227. And as in the instant case the contract could have been performed according to its terms within one year by an exercise of the option at the end of 6 months, we must hold that the contract is one not required by the New York statute to be in writing. It is said, finally, that the plaintiff had been paid in full for all his services, and that on August 2, 1912, he signed a voucher check which contained the words “In full settlement to date,” and that he rendered no services thereafter. The plaintiff claimed that this voucher carried on its face tire condemnation of the construction for which the defendant contended, as it particularly limited the amount for which it was drawn to the particular items which it contained, and that none of such items were within the claim of the plaintiff in this case. The [73] court in the charge to the jury called attention to this receipt and said: i “It is for you to properly construe, together with the whole testimony, the meaning of that receipt. If you believe it was a receipt in Ml for ail commission;! up to date, then, unless there was a mistake, a mutual mistake, in the execution of it, it would bo conclusive on the plaintiff that he was getting all he was entitled to get at that time, all that was due him at that time.” The defendant took no exception- to this part of the charge, and made no request with respect to it. In the absence of an exception, the defendant cannot raise the question in this court on writ of error. Moreover, there is no reference to the matter in the assignment of errors. Judgment affirmed.