32 Pa. Super. 37 | Pa. Super. Ct. | 1906
Opinion by
In the statement of claim filed by the plaintiff in this case, he claims “ to recover from W. J. Hale, the defendant, the sum of $1,586.46, with interest thereon from July 7, 1902, being balance due plaintiff for services rendered by him for said defendant as bookkeeper, salesman, and for general work done and performed by plaintiff for defendant in and about said defendant’s coal yard and business in the city of Titusville, Penn., as per itemized statement of account hereto attached and made part hereof, showing the amount of said services, time when rendered and value thereof,” etc. The defendant filed an affidavit of defense, admitting the employment of the plaintiff under an express contract, and relied upon specific facts therein stated as well as the insufficient and defective character of the statement, and subsequently pleaded non-assumpsit payment, etc. The trial by jury resulted in a verdict in favor of the plaintiff for $1,137.66, with interest from July 7,1902.
In disposing of this appeal it is sufficient to consider only the assignments of error relating to the evidence of the plaintiff in support of his claim, as set out in his statement. Had the trial on the merits of the case resulted in a verdict which was supported by competent evidence, we would not be. disposed to
On the trial the plaintiff’s proof was not responsive to the demand set out in the statement. From the opening to the conclusion of the case, his contention was, that he and the defendant had been, for the whole time covered in the itemized account, associated as partners and not as employer and employee. Frequent objections were made by the defendant’s counsel in various forms to the competency and relevancy of the evidence under the pleadings, and that an entirely new and different cause of action was introduced, which was fol
The statement does not suggest any partnership relation, or the evidence show that there was any account kept or record made of the time, services or compensation of the plaintiff. Whatever right he may have, it must be asserted in conformity with the law, and to permit a recovery under such testimony in supporting such a statement would be to ignore all order and method in pleading. No suggestion of an amendment was made even after the trial judge openly called the attention of plaintiff’s counsel to the fact that, on his own theory of the case, there was no evidence proffered to show a demand on the part of the plaintiff and a refusal on the part of the defendant to carry out the alleged agreement to enter into a partnership. While this proof was supplied, there was no amendment of the record to support it. This was not a case for an amendment of the pleadings to be allowed or made in'this court, as the case was not tried on its merits in the court below, and to sustain the verdict would be to approve the methods by which it was obtained. The issue and rights of the parties under the pleadings as made by the plaintiff himself were lost sight of, and from the confused and contradictory testimony the jury were called upon to adjust an alleged family partnership transaction (Ryder v. Jacobs, 182 Pa. 624) in which the methods of doing the business, the amount of stock, profits, and- proportions of interest were relied on to fix a quantum meruit per diem compensation of the plaintiff.
As the case goes back for another trial it is proper that the second assignment of error should be considered. The defendant’s counsel requested the court to withdraw a juror and con
The judgment is reversed, and a venire facias de novo awarded.