Standard Bitulithic Co. v. Curran

• Citation: 256 F. 68
• Decision Date: 15 January 1919
• Docket Number: 145.
• Parties: STANDARD BITULITHIC CO. v. CURRAN.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

256 F. 68

STANDARD BITULITHIC CO. v. CURRAN.

No. 145.

United States Court of Appeals, Second Circuit.

January 15, 1919

Strong & Mellen, of New York City (Chase Mellen, of New York City of counsel), for plaintiff in error.

Eadie Innes & Walser, of New Brighton, N.Y. (Bertram G. Eadie and Frank H. Innes, both of New Brighton, N.Y., of counsel), for defendant in error.

Action by Joseph Curran against the Standard Bitulithic Company. Judgment for plaintiff, and defendant brings error. Affirmed.

This cause comes here on writ of error to the District Court for the Southern District of New York. The defendant in error plaintiff below, and hereinafter called plaintiff, is a citizen of the United States and a resident of the borough of Richmond, city and state of New York. The plaintiff in error defendant below, and hereinafter called defendant, is a corporation organized and existing under the laws of the state of West Virginia. The action is in contract, and the complaint alleges three separate causes of action.

The first cause of action sets forth the employment of the plaintiff by the defendant on September 2, 1910, as agent or promoter, to secure for defendant the selection and adoption of bitulithic and Warrenite pavements, with the right and privilege of making bids and executing contracts for the laying of such pavements in certain communities in the states of New York and New Jersey, for the agreed price of $1,800 per annum as salary, and in addition thereto the further sum of 3 cents per square yard for each square yard of the aforesaid pavements laid in said communities; that such employment provided for a temporary or probationary period of six months, and if, at the end of that period, the services were satisfactory, such employment was to continue for the further period of about nine years; that, pursuant to said agreement, plaintiff performed work, labor, and services, under the direction of the defendant, for said period of six months, which were announced by said defendant to be satisfactory and acceptable; that thereafter plaintiff continued in said employment, pursuant to and under the terms thereof, and that between the said 2d day of September, 1910, and the 1st day of August, 1912, he secured for the defendant certain specified contracts for the laying of its pavement in certain municipalities in the states of New York and New Jersey, to the amount of 141,700 square yards; that plaintiff performed all of the conditions of said contract upon his part to be performed, until prevented by defendant on or about August 1, 1912; that the defendant, in violation of its agreement, neglected and refused to pay plaintiff for the pavements laid by defendant to the extent of 94,500 square yards, under bids and contracts secured for it by the plaintiff, and for which defendant was to pay the plaintiff the sum of 3 cents per square yard as a commission, amounting in the aggregate to the sum of $2,835, although plaintiff duly demanded payment.

The second cause of action set forth in the bill of complaint is substantially the same as that set forth in the first, but is alleged in a different form, and as for work, labor, and services, without any reference to the agreement set forth in the prior cause of action.

The third cause of action, after setting forth the making of the agreement alleged in the first cause of action, and the due performance of all of its terms and conditions upon the part of the plaintiff, and his readiness and willingness to continue to perform the same, alleges its repudiation and termination by the defendant, to the plaintiff's damage in the sum of $150,000. And judgment is asked against defendant in the sum of $152,835.

The first two causes of action are in effect the same, but put in different form. The first and second causes of action relate to what the plaintiff earned

while employed with the defendant before he was discharged. The third cause of action is based, not on what the plaintiff earned under the contract during the time it was in force, but on what he claims he would have earned after the contract had been terminated, and during its unexpired term, from the time that he was discharged up to the time that he claims the contract ran.

The defendant admitted in its answer that it had not paid to plaintiff the said sum of $2,835, or any part thereof, and it denied that the same, or any part thereof, was due and owing to the plaintiff, as alleged in the second cause of action. The defendant denied, as a defense to the first and third causes of action, that any such agreement or contract was made as alleged, and that, if one was made, the same was void, in that it was not to be performed within one year, and no note or memorandum thereof was made by the defendant and subscribed as required by the statute of the state of New York in such case made and provided.

The case was submitted to a jury, and a verdict was found in favor of the plaintiff in the sum of $8,527.20. The defendant moved to set aside the verdict, and the court granted the motion, unless the plaintiff consented to reduce the same to the sum of $5,640.50. The plaintiff so consented, and judgment was entered for this amount, together with the costs.

Before WARD, ROGERS, and HOUGH, Circuit Judges.

ROGERS, Circuit Judge (after stating the facts as above).

The complaint sets forth with particularity in its first cause of action a contract, the performance by the plaintiff of certain services thereunder, the failure of the defendant to pay for such services, and a demand for judgment; in its second cause of action the complaint sets forth the same work, labor, and services as in the first cause of action, and demands judgment upon quantum meruit; and in the third cause of action the same contract is alleged as is set forth in the first cause of action, and damages for its breach are demanded. The allegations of the complaint are denied by the answer. A question of fact was thereby created, which was submitted to the jury, and that body has found a verdict in favor of the plaintiff, which is not to be disturbed, but must be accepted as conclusive, unless errors of law have been committed which require a reversal.

It is alleged for error that during the progress of the trial the court permitted an amendment of the pleadings to conform the pleadings to the proof. Courts, in the exercise of their common-law jurisdiction, may in their discretion permit pleadings to be amended at any time before verdict, if such amendment does not surprise or prejudice the opposite party. The authorities differ upon the question whether a court, in the exercise of its common-law jurisdiction, may of its own motion and without application by one of the parties order an amendment to be made. The Code of Civil Procedure of the state of New York (Sec. 723) provides as follows:

'The court may, upon the trial, or at any other stage of the action, before or after judgment, in

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