Shea v. Kerr

17 Del. 530 | Del. Super. Ct. | 1899

Tore, C. J.,

charging the jury :

Gentlemen of the jury :—This action is brought by Agnes Kerr, plaintiff below, to recover from Thomas E. Shea, the defendant below, the sum of $73.62, with interest thereon from May 3, 1897. The seventy dollars being for two weeks’ salary, as leading lady in the defendant’s theatrical company, at thirty-five dollars per week ; the three dollars and sixty-two cents is for carfare paid by her.

The plaintiff alleges, that she was engaged by the defendant at thirty-five dollars per week, and was not to be discharged except on two weeks’ notice ; and that defendant agreed to pay one-half her car fare, amounting to $3.62. That she was discharged without any notice; that she now sues for two weeks’ salary which she was prevented by such discharge from earning, and also for car fare paid by her.

The declaration contains a special count for the seventy dollars salary only, but contains also the usual common counts.

If from the evidence, you believe that there was a distinct preliminary agreement between the plaintiff and the defendant, in which the defendant promised to pay the plaintiff the car fare amounting to $3.62, she may recover that amount on the common counts. But if you believe the promise to pay the car fare was only included in, and was a part of the contract specially declared on, she cannot recover the car fare in this action ; because it is not claimed or set out in the special count of the declaration of the plaintiff.

If you believe from the evidence, that the plaintiff was engaged by the defendant, at a salary of $35.00 per week, and that he agreed in that contract to give her two weeks’ notice before discharging her, and that he discharged her without giving such notice, without her consent, and while she stood and tendered herself ready to perform the contract on her part, the plaintiff may recover on the special count for the breach of the contract; and the measure of her damages would be, the amount the defendant agreed to pay her as salary for the two weeks.

We cannot charge you, that the preliminary agreement respecting car fare, if any there was, was merged in the contract specially declared on; nor can we charge that there is a fatal variance between the contract as declared upon and the contract as proved, if there shall appear no inconsistency between them, and that the only difference consists in this, that the contract as declared on does not set out all the facts and details of the contract proved. The plaintiff may, in setting out her contract, if she sees fit, waive the benefit of some separate and distinct parts of the contract proved ; provided they do not vary, contradict or invalidate the contract as set forth in the declaration. What is proved, however, must be consistent with the contract set out in the declaration.

This case seems to come within the rule of redundancy only in the proof, explained in 1 Greenleaf on Evidence, Secs. 67 and 68, and 1 Chitty on Pleading 299; and not one resting in entirety of contract or consideration.

Verdict for plaintiff below for $81.47.