McEvoy v. Bock

34 N.W. 740, 37 Minn. 402, 1887 Minn. LEXIS 150

• Court: Supreme Court of Minnesota
• Decided: November 7, 1887
• Status: Published

Opinion

Gileillan, C. J.

Plaintiff sues defendants as copartners upon a written contract of employment, by which the partnership employed plaintiff as an actress for a specified time, at a specified salary per week, payable at the end of each week. The contract was made by plaintiff by the name of Marie Wellesley, and the suit was brought in the name of Marie Wellesley Sterling, while her full legal name was Marie Wellesley Sterling McEvoy; Marie Wellesley being wbat is called ber stage name, and Marie Wellesley Sterling her business name, or the name by which for 12 years (as she testified) she transacted her business. The court below, against defendants’ objection, permitted the record to be corrected by inserting plaintiff’s full legal name. This was within the discretion of the court, and, as there was no suggestion that defendants had been misled, it will not be reviewed.

On the trial, the court allowed plaintiff to prove by oral testimony the partnership, and who composed it, although there were written articles of copartnership. This was correct. The fact of a copart-nership, and who compose it, may, certainly in behalf of a third person, be proved by parol, even if there be written articles, though the terms of it cannot be so proved. With the terms of the articles plaintiff had no concern, — they were not in question in the case; so that there was no issue to which they were relevant, and when offered by defendants they were properly excluded.

Plaintiff had sued and recovered for one week’s salary prior to the time claimed for in this action. The salary being payable weekly, she could at any time sue for all due her at the time of commencing suit, without barring her right to afterwards sue for and recover salary subsequently becoming due.

We see nothing in any of the assignments of error.

Orders affirmed.