Cleasby v. Reynolds

58 A. 786 | R.I. | 1904

The special count sets out that, as part consideration for the plaintiff's services, the defendant agreed to procure for the plaintiff five hundred shares of stock. The evidence was that on receipt of this stock the plaintiff was to pay fifty-one cents per share. This is doubtless a variance. But this statement of the contract could not have surprised the defendant, inasmuch as his own testimony not only corroborates the plaintiff in this regard, but adds the further fact that the plaintiff offered to pay him the fifty-one cents per share if he would deliver the stock.

The fact being undisputed, the count may be amended to conform to it, as was done in Spicers v. Harvey, 9 R.I. 582;Prefontaine v. Roberge, 20 R.I. 418; Stearns v. Drake,24 R.I. 272. When this is done the record will conform to the facts and can be relied on in bar of another action for the same cause.

Petition for new trial denied. Judgment in accordance with the decision will be entered when the plaintiff shall have amended his special count.