A. B. Smith Co. v. Jones

| Miss. | Dec 15, 1897

Woods, C. J.,

delivered the opinion of the court.

1. The written statement of the cause of action filed with the justice of the peace, even after -its amendment in the circuit, court, was imperfect and did not state the real ground for recovery, and, if the appellant had been surprised or in any way misled by the erroneous statement of the cause of action, we should not and would not hesitate to reverse. But it is perfectly clear that the litigants fought the case out on the proper issue, and that the correct result has been reached, assuming, as we do, the conclusiveness of the jury’s verdict, and we decline to disturb the judgment because of the harmless variance between the written statement of the cause of action and the evidence offered to support it. Moreover, all proceedings in justices’ courts are, and must be, treated with great indulgence. It is the substance, and not the form, to which we look in such cases.

2. No contract is to be presumed to be fraudulent where, by its terms, no fraud appears. This contract of employment was made on September 19, and was capable of performance within twelve months from the date of its making. There is nothing to show that the performance was to begin a week or a day after its making. The record is silent on that point, and we are not to assume that there was a fraudulent intent on the part of the makers. The contract was-one, according to the view of the appellee, for twelve months’ service, and this view the jury adopted. From the evidence of appellee he began on the nineteenth, the day of the making of the contract. ' He says that, with his employer, he began to examine the books which he was to keep, under the supervision of that employer, and that such examination was suspended, at the suggestion of the employer, when the dinner hour arrived. He made his first entry on the books the next day, the twentieth, because of his return to Greenville, as we assume with the consent of the employer, but the first entry on the books does not necessarily show when the employment actually began. Why was not an examination of the books and an acquainting himself with the duties of his employment the beginning of the execution of the contract ? But whether the bookkeeper began his work on the nineteenth or twentieth was a question of fact, determinable not by the terms of the contract, for the contract is silent on this point, but from the evidence. This question was fairly and properly submitted by the court to the jury, and the jury has found the fact to be that the contract was to be performed within twelve months from its making, and that it was not impossible of performance in that time.

Affirmed.