Cleasby v. Reynolds

Supreme Court of Rhode Island

Cleasby v. Reynolds

58 A. 786, 26 R.I. 236, 1904 R.I. LEXIS 64

DecidedJune 20, 1904

StatusPublished

This text of 58 A. 786 (Cleasby v. Reynolds) is published on Counsel Stack Legal Research, covering Supreme Court of Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cleasby v. Reynolds, 58 A. 786, 26 R.I. 236, 1904 R.I. LEXIS 64 (R.I. 1904).

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Opinion

(1) Per Curiam.

The special count sets out that, as part consideration for the plaintiff’s services, the defendant agreed to procure for the plaintiff five hundred shares of sto.ck. The evidence was that on receipt of this stock the plaintiff was to pay fifty-one cents per share. This is doubtless a variance. But this statement of the contract could not have surprised the defendant, inasmuch as his own testimony not only corroborates the plaintiff in this regard, but adds the further fact that the plaintiff offered to pay him the fifty-one cents per share if he would, deliver the stock.

The fact being undisputed, the count may be amended to conform to it, as was done in Spicers v. Harvey, 9 R. I. 582; Prefontaine v. Roberge, 20 R. I. 418; Stearns v. Drake, 24 R. I. 272. When this is done the record will conform to the facts and can be relied on in bar of another action for the same cause.

*237 James A. Williams, for plaintiff. Harry C. Curtis, for defendant.

Petition for new trial denied. Judgment in accordance with the decision will be entered when the plaintiff shall have amended his special count.

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(1) Per Curiam.

The special count sets out that, as part consideration for the plaintiff’s services, the defendant agreed to procure for the plaintiff five hundred shares of sto.ck. The evidence was that on receipt of this stock the plaintiff was to pay fifty-one cents per share. This is doubtless a variance. But this statement of the contract could not have surprised the defendant, inasmuch as his own testimony not only corroborates the plaintiff in this regard, but adds the further fact that the plaintiff offered to pay him the fifty-one cents per share if he would, deliver the stock.

The fact being undisputed, the count may be amended to conform to it, as was done in Spicers v. Harvey, 9 R. I. 582; Prefontaine v. Roberge, 20 R. I. 418; Stearns v. Drake, 24 R. I. 272. When this is done the record will conform to the facts and can be relied on in bar of another action for the same cause.

*237 James A. Williams, for plaintiff. Harry C. Curtis, for defendant.

Petition for new trial denied. Judgment in accordance with the decision will be entered when the plaintiff shall have amended his special count.

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Bluebook (online)

58 A. 786, 26 R.I. 236, 1904 R.I. LEXIS 64, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cleasby-v-reynolds-ri-1904.