Viall v. Lionel Mfg. Co.

• Decision Date: 27 July 1916
• Citation: 98 A. 329
• Parties: VIALL v. LIONEL MFG. CO.
• Court: Connecticut Supreme Court

98 A. 329

VIALL

v. LIONEL MFG. CO.

Supreme Court of Errors of Connecticut.

July 27, 1916.

Appeal from Court of Common Pleas, Fairfield County; Howard B. Scott, Judge. Action by William G. Viall against the

Lionel Manufacturing Company. Judgment for defendant, and plaintiff appeals. Reversed, and new trial ordered.

Henry E. Shannon, of Bridgeport, for appellant. Harrison T. Sheldon and William B. Gumbart, both of New Haven, for appellee.

WHEELER, J. The complaint recites that on October 4, 1913, the plaintiff and defendant entered into a written agreement by which the plaintiff was to enter the employ of the defendant for a period of 15 months from October 15, 1913, at the annual salary of $2,000, payable in equal weekly payments, that the defendant paid this salary up to December 9, 1913, and since this date has refused to carry out its contract, while the plaintiff has been ready and willing so to do, and that there is due the plaintiff for salary under the contract $1,821.48, less $875, the amount earned by the plaintiff in other employment.

The defendant answered by a general denial, and in paragraph 2 pleaded a former judgment for the same cause of action. Later on it filed a so-called second defense alleging in greater detail the former judgment as a bar, and that it paid the judgment. The plaintiff interposed a demurrer to this second defense which the court sustained. While paragraph 2 has not been withdrawn and raises the defense of a former judgment in bar to which the demurrer did not run, we think it proper to treat the case as the parties and court treated it, as governed by the demurrer whose decision took this defense out of the case.

By consent of the plaintiff the defendant filed a third defense making all of the allegations of the second defense a part of it, and further alleging that the plaintiff never entered the employ of defendant and never performed service for it and during a large part of the period of the contract was employed by others. The allegations in addition to the second defense did not add a new defense nor bring into the case any fact not admissible under the then condition of the pleading. We see no purpose in the third defense except that of a renewal of the second defense. This was improper pleading, and if attention had been called to it would not have been allowed. The former judgment had been determined to he no bar to this action; that ruling was the law of the case until reversed. But this "third defense" was filed with the consent of the plaintiff and the permission of the court. It was replied to by a denial, and considered by the trial court, and a decision rendered thereon that the judgment in the former action was a bar to the present action contrary to that rendered on the demurrer by Judge Scott.

Under these circumstances, despite the irregularity of the procedure, the consent of the plaintiff has put into the case an issue already decided in his favor, and, since the court has permitted this course, so far as the record speaks, without reason, we are obliged upon this appeal to consider it.

The judgment in the former action found the issues for the plaintiff. And those as recited in the complaint were: That on October 4, 1913, the plaintiff and defendant entered into the written agreement recited in the complaint and finding herein, and on October 12, 1913, the defendant requested the plaintiff to do preliminary work at his home, and the parties agreed that the plaintiff's salary should be $27 a week until January 1, 1914, unless the defendant before this date called him to work in the factory, in which event the salary as originally agreed upon should be paid; that the defendant failed to send plaintiff any of the preliminary work and refused, and still refuses, to carry out its part of the contract; that the plaintiff has been ready and willing to perform his part of the contract; and that on December 8, 1913, there was due the plaintiff for salary under the contract $216, which defendant has, although the same has been demanded, refused to pay. The claim for relief was $300.

The cause of action in the former case was for salary accrued prior to the date of the action. This, we think, is manifest from the particularization of the period of service for which recovery is specifically sought. All of the allegations of the complaint are applicable to this cause of action. It is true those of paragraph 7 would be appropriate to a claim for damages for breach of the contract generally. Yet, when these allegations are read in connection with the rest of the complaint, it sufficiently appears that the pleader intended to state a cause of action for salary accrued prior to December 8, 1913. This...