Kemp v. Tonnele Co. ( 1906 )

Leventbitt, J.

On October 24, 1904, the parties entered into a written agreement whereby the services of the plaintiff were engaged by the defendant for one year from that date and the compensation fixed at a weekly salary of thirty dollars, together with a commission of ten per cent. The contract was fully performed by the plaintiff, but he received no pay for the last sixteen weeks. He sues to recover the salary earned during that period. The pleadings are verified. The defendant entered a demurrer to the sufficiency of the complaint. The demurrer was overruled and then the defendant interposed an answer, wherein it admits the making of the contract but pleads that it was abrogated on July 31, 1904, and an oral agreement substituted whereby the provision for salary was eliminated and the commission increased to fifteen per cent. ¡No judgment was entered on the demurrer.

The only substantial issue litigated on the trial was the cancellation of the original written contract and the adoption in its stead of a subsequent parol agreement. The plaintiff’s insistence that there had been no change was well supported by the surrounding circumstances and was not so clearly overcome by the testimony of the two interested witnesses to the contrary as to justify the conclusion that a new contract was made. The learned justice was fully warranted in accepting the plaintiff’s denial, in holding that the' original contract was continued in force for the full period and consequently in awarding a judgment in favor of the plaintiff for $450, the amount claimed in the summons, together with interest and costs, in all $497.15. Several days after the trial the plaintiff discovered that the nonpayment of his salary for sixteen weeks entitled him to a recovery of $480, and he thereupon moved that the judgment be increased accordingly. The denial of that motion led to an appeal on his part, while the defendant appeals from the entire judgment as entered and, at the same time, seeks to review the adverse decision on the question of law raised by its demurrer.

For two reasons we cannot entertain the latter branch of the appeal. ¡No judgment was entered overruling the demurrer and the defendant submitted to the decision, interposed an answer and proceeded to the trial of the facts. As we cannot consider the outcome of the demurrer and, as already indicated, the plaintiff was entitled on the merits to the judgment rendered in his favor, the defendant’s appeal must fail.

Although the summons called for a recovery of only $450 the complaint and the proof clearly showed unpaid salary for sixteen weeks at the rate of $30 a week, or a total of $480. The obvious mistake in computation should have been cor.rected and the judgment increased by the addition of $30.

The judgment should be affirmed on the appeal of the defendant, with costs of appeal to the plaintiff; and, on his appeal, the judgment should he increased to $527.15, without costs of appeal.

Gildebsleeve and McCall, JJ., concur.

Judgment affirmed on appeal of defendant, with costs of appeal to plaintiff; and, on his appeal, judgment increased^, to $527.15, without costs of appeal.