Gillies v. Manhattan Beach Imp. Co.

• Decision Date: 26 November 1895
• Citation: 147 N.Y. 420,42 N.E. 196
• Parties: GILLIES v. MANHATTAN BEACH IMP. CO., Limited.
• Court: New York Court of Appeals Court of Appeals

147 N.Y. 420

42 N.E. 196

GILLIES

v.MANHATTAN BEACH IMP. CO., Limited.

Court of Appeals of New York.

Nov. 26, 1895.

Appeal from supreme court, general term, Second department.

Action by John Gillies against the Manhattan Beach Improvement Company. From a judgment of the general term (26 N. Y. Supp. 381) affirming a judgment for plaintiff, defendant appeals. Affirmed.

Alfred A. Gardner, for appellant.

Edwin C. Low, for respondent.

O'BRIEN, J.

The plaintiff recovered a sum which the referee found was the balance due him upon a contract between the parties whereby the plaintiff undertook to perform for the defendant certain work which is specified therein. The defendant, in support of the appeal, presents but two questions as ground for the reversal of the judgment:

1. That the complaint set out a cause of action upon a quantum meruit, and the recovery was upon the contract, and that seems to be so. The defendant's answer alleged that the work was done under the contract, claimed that there was a breach of it by the plaintiff in failing to perform in certain particulars, and, by way of counterclaim, claimed damages for the breach. To this the plaintiff replied, alleging that the contract was waived by the parties, and denying any loss or damage to the defendant. The facts applicable to either theory of the case were contained in the pleadings when read together. The trial proceeded upon these pleadings precisely as if the plaintiff had counted on the contract, and no question was raised by either party in regard to the form of the action. The plaintiff opened the case by putting the written contract in evidence, without any objection, and in the same way the certificate of the defendant's engineer, showing the balance due to the plaintiff, which was awarded to him by the referee, was introduced. This certificate was one of the stipulations of the contract, and the evidence upon which the plaintiff was to become entitled to payment, and it showed that there was due the plaintiff for the work the sum which he recovered. The only exception that the defendant relies upon to raise this question is one taken at the close of the plaintiff's case to the ruling of the referee refusing to dismiss the complaint on the ground that the plaintiff had not made out a cause of action. The point that the plaintiff had failed to make out the particular cause of action stated in the complaint was not raised at all, nor was it suggested at any stage of the trial. The facts proved and found warranted the judgment, and it is a familiar rule that, where the cause is tried on both sides without regard to the technical form of the action as disclosed by the complaint, and no question is raised at the trial, or objection made to that course, the successful party will be deemed to have recovered upon the facts shown, and not strictly upon his pleading. Belknap v. Sealey, 14 N. Y. 143. The defendant, from the course of the trial and failure to raise such a question in some form, must be deemed to have assented to, or, at least, waived, the variance, if any, and it is too late to insist upon such a point upon appeal to this court.

2. The other point is that a material finding of fact by the referee is not supported by evidence. This, of course, presents a question of law. The referee found that the defendant's engineer, after the completion of the work, and on July 9, 1884, made a final estimate...