Copeland v. Johnson Manuf'g Co., 3 N.Y.S. 42

Copeland v. Johnson Manuf'g Co.

3 N.Y.S. 42 | N.Y. Sup. Ct. | 1888

Lead Opinion

Van Brunt, P. J.

When this action was upon appeal before, (47 Hun,. 235,) a recovery had been had upon proof of certain agreements between the-assignor of the plaintiff, who was president of the defendant, and two other of the trustees of the defendant, fixing compensation for the performance of services rendered by him to the defendant, and the judgment was reversed upon what has now become the familiar principle that an officer of a corporation cannot make a binding agreement with it, but, if he has any claim for services rendered or for materials furnished, he can only recover upon quantum meruits, not upon an agreement as to price. Upon the new trial of this action evidence as to the quantum meruits was offered, which was objected to by the defendant’s counsel as not being within the pleadings, which, objection was sustained; and the plaintiff was thereupon, over the exception of the defendant, allowed to amend his complaint, alleging the reasonable-value of the services. It is claimed that the court had no power to allow this-amendment, upon the ground that it substantially changed the cause of action. This objection does not seem to be well founded. The cause of action was not changed. The declaration was for work, labor, and services, and such the declaration remained, even after the amendment. The method of proving the damages only was changed. It would appear that the complaint was entirely sufficient originally to admit of proof as to the quantum meruits. The rule under the old system of pleading was that, under an indebitatus count in assumpsit or debt, the plaintiff may recover, although .there is no-proof of fixed price. 1 Chit. PI. 842. Under this rule of pleading the complaint in this action was sufficient to admit evidence of the quantum meruits without amendment.

*43The objection that the complaint never was in fact amended does, not seem to be well founded, as the amendment was reduced to writing, duly ordered to be made, and, even if omitted from the judgment, the irregularity cannot avail upon this appeal, as the record before us shows that the amendment had been actually made. The exception to so much of the charge as submitted to-the jury the question of subsequent ratification of the rendition of the services-has no foundation. There was sufficient evidence to bring the case within the principle of Jackson v. Railroad Co., 2 Thomp. & C. 653, which case was subsequently affirmed by the court of appeals, (58 N. Y. 623.) The judgment appealed from should be affirmed, with costs.

Concurrence Opinion

Daniels, <T., (concurring.)

I agree to affirm for the reasons assigned, and also for the further reason that under section 723 of the Code of Civil Procedure the court was fully empowered to make the amendment which was allowed. It was no more than inserting another allegation material to the case, which this section expressly authorizes.

Bartlett, J., concurs.