4 Conn. 259 | Conn. | 1822
The action of the plaintiff is founded on promises made to him by the defendant, in consideration of certain executory promises, to be performed on the plaintiff’s part. The contract set forth on the record, and the one proved, must agree in substance and effect. The promise sought to be enforced need not be co-extensive with the one actually made, it being sufficient to state so much of the contract only, as evinces the engagement, on which the
With these principles in view, I will attend to the objections made to the charge of the court. They relate to certain supposed variances, and to the effect of an award, in respect of which it is claimed, that the court expressed an erroneous opinion.
The plaintiff avers in his declaration, that he contracted to employ the defendant’s son, so long as he, the plaintiff, pleased; and as the defendant contended, it was proved, that he was to employ him for the season. This the court judged to be an immaterial variance; but in my opinion, it is of a different character. The promise is alleged to have been entirely dependant for its continuance on the plaintiff’s will; while the proof evinces an absolute contract for a determinate period. Between the averment and the evidence, there is the same difference as exists between an estate for years, and an estate at will.
In his declaration, the plaintiff alleges, that the contract made with the defendant, was to end, at the expiration of the season for dressing cloth, to wit, on the 1st day of May, 1819. Notwithstanding the time mentioned is under a scilicet, it must be deemed a material averment; and if so, its being
The judge omitted to instruct the jury, that a variance existed in another particular, on which his charge to them was requested. The plaintiff averred in his declaration, that the defendant was to look to the books for the whole of his pay; and, it is contended to have been proved, that the monies first collected should be thus applied, and resort be had to the accounts for the residue. The variance is material; and the jury to this effect should have been instructed.
The court correctly decided, that the award stated in the motion was conclusive on all the facts submitted. Ravee v. Farmer, 4 Term Rep. 146. Smith v. Johnson, 15 East, 213. Doe d. Morris v. Rosser, 3 East, 15. Bunnel v. Pinto, 2 Conn. Rep. 431. But this opinion should have been accompanied with an explicit declaration of the legal effect; that is, that the parol contract was merged and extinguished. The jury under the charge must have believed, that the contract, instead of being defeated, was conclusively established, by the award; and for this reason, the omission of the judge was highly material.
New trial to be granted.