12 Colo. App. 511 | Colo. Ct. App. | 1899
The summons issued and served in this case was entitled
“ 3. That the plaintiff continued in said employ until the first day of September, 1895, and was ready and willing to remain in the same for the remainder of said term, but the said defendants, J. V. Collins & Co., refused to retain the plaintiff'in their said employment, and discharged the plaintiff therefrom without any reasonable cause whatever, and have thence hitherto refused to employ the plaintiff for the remainder of said term.
“ 4. That the said plaintiff has thereby lost the wages he otherwise would have obtained from other employment; that the said defendants have wholly refused to pay him the said wages; that the said plaintiff has been unable to obtain other employment; all of which has been to the damage of said plaintiff in the sum of five hundred ($500.00) for which he brings suit.”
The plaintiff demanded judgment for $500 and costs. The defendants appeared specially, and moved that the summons be set aside, quashed and held void, because of an alleged fatal variance between it and the complaint, in that it did not set forth correctly the name of the plaintiff, and did not state truthfully the sum of money or other relief demanded in the action. The motion was sustained, and from this plaintiff appeals.
Neither do we see how defendants’ rights were prejudiced by reason of the fact that the sum for which judgment was demanded in the complaint was stated to be $500, whilst in the summons it was alleged to be $S75. If defendants had not appeared and judgment had been rendered by default, it could not have been for a greater sum than that stated in the summons. If they appeared and answered, even though the relief demanded both in the summons and the complaint corresponded, judgment could have been given for a greater amount if warranted by the evidence. Code, sec. 169 ; Andrews v. Carlile, supra. In addition to this, we think that a reasonable construction of the language used both in the complaint and in the summons makes it apparent that plaintiff was basing his right to recover upon the amount of wages which he would have received for the unexpired term of his contract of employment, namely, three months. It is true that the phraseology of the complaint might have been somewhat improved, but its defects, if there were any, were not such as to materially mislead. The words, “ That the said plaintiff had thereby lost the wages he otherwise would have obtained from other employment,” might possibly not have been necessary, but the words immediately following, “ that the said defendants have wholly refused to pay him the said wages,” indicate, when taken in connection with the recitals of the summons and other parts of the complaint, that the plaintiff sought to recover a sum equal to the amount of the wages which he would have earned under the contract dur
The judgment will be reversed.
Reversed.