Loranger v. Davidson

• Decision Date: 06 October 1896
• Citation: 110 Mich. 605,68 N.W. 426
• Court: Michigan Supreme Court
• Parties: LORANGER v. DAVIDSON ET AL.

68 N.W. 426

110 Mich. 605

LORANGER v. DAVIDSON ET AL.

Supreme Court of Michigan

October 6, 1896

Error to circuit court, Bay county; Andrew C. Maxwell, Judge.

Action by Fred C. Loranger against Thomas W. Davidson and Charles T Newkirk, commenced in justice's court, and taken on appeal by defendants to the circuit court. There was a judgment in favor of plaintiff, and defendants bring error. Reversed.

Van Kleeck & Anneke, for appellants.

U. R Loranger, for appellee.

MOORE J.

The plaintiff sued the defendants in justice's court. He declared "verbally on the common counts in assumpsit and especially for work and labor performed by plaintiff for defendants, at their request, during the months of January February, March, and April, at seventy-five dollars per month." He obtained a judgment for $150. Defendants appealed to the circuit court. It was the claim of the plaintiff that on October 11, 1894, he made an oral contract with defendants to become the manager of their store for one year from November 1, 1894, at a salary of $900 a year, payable monthly; that he worked nearly two months under the contract, when he was paid up and discharged without cause. He further claimed that he held himself in readiness to perform his contract, but was not allowed to do so. He sued to recover pay for the months of January February, March, and April. It was the claim of the defendants that plaintiff was hired at $75 per month for the balance of 1894, and, if his work was satisfactory, he was to be continued in their employ; that his work was not satisfactory, and for that reason they did not retain him; and that he was paid in full for all that he did. When plaintiff had put in some proof and given his version of the contract, objection was made to his putting in proof in relation to the months of January, February, March, and April, upon the ground that, if no work was done after the 1st of January, plaintiff should have counted on a breach of the contract when this occurred. "The Court: That is right, but I will permit him to amend. Mr. Loranger: In the court below, this point was not raised, and has been waived. The whole thing was gone into there. The Court: You are entitled to amend, and you may amend. Mr. Anneke: Will your honor hear some authorities upon the amendment? The Court: No; I don't care to hear them. You may file your amendment during the day. (Exception taken.) Mr. Van Kleeck: Will your honor pursue the ordinary rule where an amendment like this is made, and let us have the option to go to trial now, or have the case go over? We say to your honor that we are not ready to meet the issue that is proposed by this amendment. It is entirely new and distinct issue. The Court: Proceed. It is refused. (Exception taken.)" The amendment was not made in fact, but was treated by the court as made, and was afterwards put in form. Some testimony was given in the case over the objection of counsel when this occurred. "Mr. Van Kleeck: I would like to be heard. Neither these parties ought to be put to the expense of going to the supreme court on this question of pleading. The Court: I won't hear any more arguments on that subject. Mr. Van Kleeck: We desire when the amendment is...