Dexter v. Ivins

New York Supreme Court

Dexter v. Ivins

15 N.Y.S. 495, 39 N.Y. St. Rep. 915, 60 Hun 585, 1891 N.Y. Misc. LEXIS 7

CourtNew York Supreme Court

DecidedJuly 2, 1891

StatusPublished

Cited by1 cases

This text of 15 N.Y.S. 495 (Dexter v. Ivins) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dexter v. Ivins, 15 N.Y.S. 495, 39 N.Y. St. Rep. 915, 60 Hun 585, 1891 N.Y. Misc. LEXIS 7 (N.Y. Super. Ct. 1891).

Pincite

Opinion

Barnard, P. J.

The complaint asks a recovery upon an entire contract, payable by installments monthly. The answer admits the employment, and avers a willingness upon the part of the defendants to comply with the terms of the contract; but that the plaintiff failed to perform during the three months 'for which payments are claimed by him. Upon the trial it was a question whether or not the plaintiff was discharged. He did no work under the contract, and the defendants gave him none to do. Upon this state of the issue and the proof the plaintiff was permitted to amend his complaint so as to conform to the proof. This was proper. If there was no discharge, the plaintiff was entitled to recover. If there had been a discharge before the service was rendered, the action was in a questionable form. The defendants, however, had averred no discharge, but had framed their answer so as to put the breach on the plaintiff. In either case the amount of the recovery was the same if the plaintiff succeeded. The action was really tried upon the issue of performance by plaintiff, and the jury has found in his favor on that point. The amendment was therefore harmless. The letter was properly admitted. It contained a copy of the plaintiff’s account. It was not proper proof to be received on the part of defendants that they had had trouble with an order forwarded by the plaintiff. If the plaintiff had procured a stuffed order, facts were to be proven, and not a correspondence between the defendants and a stranger to the record. It was not proper to put a question whether the plaintiff could perform his duty as salesman without samples. The facts as to the mode and manner of sale were fully proven, and the inference was for the jury. There are no exceptions to the charges which are well taken. They seem to be based upon the fact that the plaintiff had been discharged, and the findings on the point were for the jury. The judgment should be affirmed, with costs. All concur.

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Barnard, P. J.

The complaint asks a recovery upon an entire contract, payable by installments monthly. The answer admits the employment, and avers a willingness upon the part of the defendants to comply with the terms of the contract; but that the plaintiff failed to perform during the three months 'for which payments are claimed by him. Upon the trial it was a question whether or not the plaintiff was discharged. He did no work under the contract, and the defendants gave him none to do. Upon this state of the issue and the proof the plaintiff was permitted to amend his complaint so as to conform to the proof. This was proper. If there was no discharge, the plaintiff was entitled to recover. If there had been a discharge before the service was rendered, the action was in a questionable form. The defendants, however, had averred no discharge, but had framed their answer so as to put the breach on the plaintiff. In either case the amount of the recovery was the same if the plaintiff succeeded. The action was really tried upon the issue of performance by plaintiff, and the jury has found in his favor on that point. The amendment was therefore harmless. The letter was properly admitted. It contained a copy of the plaintiff’s account. It was not proper proof to be received on the part of defendants that they had had trouble with an order forwarded by the plaintiff. If the plaintiff had procured a stuffed order, facts were to be proven, and not a correspondence between the defendants and a stranger to the record. It was not proper to put a question whether the plaintiff could perform his duty as salesman without samples. The facts as to the mode and manner of sale were fully proven, and the inference was for the jury. There are no exceptions to the charges which are well taken. They seem to be based upon the fact that the plaintiff had been discharged, and the findings on the point were for the jury. The judgment should be affirmed, with costs. All concur.

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Bluebook (online)

15 N.Y.S. 495, 39 N.Y. St. Rep. 915, 60 Hun 585, 1891 N.Y. Misc. LEXIS 7, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dexter-v-ivins-nysupct-1891.

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