Shea v. Kerr

• Decision Date: 17 February 1898
• Court: Delaware Superior Court
• Parties: THOMAS SHEA, d. b. a., v. AGNES KERR, p. b. r

40 A. 241

17 Del. 198

THOMAS SHEA, d. b. a., v. AGNES KERR, p. b. r

Superior Court of Delaware, New Castle County

February 17, 1898

Superior Court, New Castle County, February Term, 1898.

ACTION OF ASSUMSIT. Narr in common counts, the claim being based upon an alleged verbal contract. The plaintiff testified to the terms of the contract, which were that she was to receive thirty-five dollars per week as leading lady in the theatrical company of the defendant below, and that either party was to give two weeks' notice to the other if it was desired to terminate the contract; that she performed with the company of the defendant for several weeks, and that her work was pronounced satisfactory by him, and that without assigning any reason or without giving any notice she was discharged by the defendant, being paid in full for services up to the time of her discharge. The suit was brought for the recovery of the two weeks' services which she tendered herself ready to perform, but which services it was alleged she was deprived of the opportunity of rendering by the action of the defendant. There was also a claim for an unpaid balance of three dollars and sixty-two cents for car fare which it was alleged the defendant had agreed to refund to the plaintiff, but failed so to do.

Mr Marvel moved for a non-suit, on the ground that no recovery could be had on the common counts, and there was no special count in the plaintiff's narr, and the claim for railroad fare was, according to plaintiff's testimony, for fare before employment.

LORE C. J:--

There is testimony as to money she paid for railroad fare.

PLAINTIFF'S PRAYERS.

The plaintiff prayed the court to instruct the jury, that where a special contract has been entered into between parties, and everything has been done except the payment of money, recovery can be had under an account stated.

Bayard vs. McLane, 3 Harr., 139; Hurlock vs. Murphy & Coperthwaite, 2 Houst., 550.

DEFENDANT'S PRAYERS.

The defendant prayed the court to instruct the jury, in part, as follows:

1. That if the jury believe the contract which the defendant offered in evidence to be the contract existing between the parties, the same being in writing and signed by the plaintiff, and if all the railroad fare during the rehearsals was paid by Mr. Shea, the plaintiff cannot recover for railroad fare after she undertook her services under the contract with the defendant.

2. That under the evidence in this case and under the pleadings, no recovery can be had by the plaintiff below respondent, the narr containing nothing but the common counts, and there being no evidence of an account stated.

Verdict for plaintiff below for $ 73.62.

James Ponder for plaintiff below.

David T. Marvel and William Michael Byrne, for defendant below.

LORE, C. J., and PENNEWILL and BOYCE, J. J., sitting.

OPINION

LORE, C. J. charging the jury:

Gentlemen of the jury:--This is an action brought by Agnes Kerr plaintiff below, against Thomas E. Shea, defendant below, to...