Morris v. Burton

4 Del. 53

• Court: Superior Court of Delaware
• Decided: July 5, 1843
• Status: Published

Opinion

The Court.

—The motion for a nonsuit is founded on the assumption of the fact, that a different special agreement has been proved from the one declared on; and it is contended, that the plaintiff cannot recover on the special count because of the variance, nor on the common counts, because a special agreement is proved.

Where the plaintiff declares on a special contract and fails to prove any contract, but proves such facts as would enable him to recover without any special agreement, he may recover on the general counts; but where he fails to prove the special contract declared on, but does prove a different special agreement he cannot, according to the older cases and authorities, and also the case of Porter vs. Beltzhoover, which follows these decisions, recover either on the special count, because of the variance, or on the common counts, because of the proof of a special agreement. Some of the later authorities, particularly the case cited from 5 Mass. Rep. 391, hold the contrary.

In the present case the proof of service is nearly all of it under neither of the special agreements; that laid, or that proved. The agreement laid was for the hire of the boy, one month at $5, and for the binding the boy at the expiration of that month to learn the tanning business; the agreement proved is either that, or an agreement like it for binding to the currying business. The proof is that the boy was not bound at the end of the month, but continued to do work and labor for a whole year. We think it competent for him to recover for this labor performed out of the contract, on the common counts for work and labor; and even as to the proof of the special contract, it is such as would prevent us from interfering on the ground of variance.

Cullen and Ridgely, for plaintiff. Houston, for defendants.

The plaintiff had a verdict for $58.