Opinion
October 4, 1907.
Frederick W. Sparks [ Leonard J. Reynolds with him on the brief], for the appellant.
Jerry A. Wernberg, for the respondents.
The question to be determined involves a consideration of the 2d and 3d subdivisions of the complaint, which are as follows: "II. That on or about the first day of April, 1892, these defendants entered into a contract or agreement with this plaintiff to him to furnish materials and labor as a mason builder and to erect said buildings pursuant to plans by them provided and to pay him for the said materials and labor as the work progressed. III. That this plaintiff entered into the performance of his duties as such contractor and builder and between the said first day of April, 1892, and the first day of September, 1892, he furnished material consisting of brick, lime, cement, sand and other building material, and furnished labor and completed said buildings and appurtenances thereto pursuant to his agreement, at the agreed price and value of Twenty-one thousand and sixty-one 85/100 ($21,061.85) dollars."
Upon the trial the plaintiff proved an oral contract made with the defendant McKane in the presence of the defendant Williamson (it being alleged that the defendants were copartners in the construction of the buildings, to recover for the erection of which this action was brought), in substance that plaintiff was to furnish the labor and materials for the construction of the buildings and be paid therefor — in addition to their cost to him — fifty cents a day for each man employed on the work; fifty cents a thousand for brick used; fifteen cents a barrel for Rosendale and ten cents a barrel for Portland cement used, the aggregate of which amounts represented his profits. After making this proof he attempted to show the number of men engaged in the work and the number of days each worked, and the number of brick and barrels of cement used, as the basis for his recovery. This evidence was objected to as immaterial and irrelevant; the objections were sustained and exceptions to the rulings duly taken. He then asked to amend his complaint in such manner as to permit the admission of this evidence; this was denied, the trial court holding that such amendment would permit recovery for a cause of action different from the one alleged.
I think the evidence was admissible under the allegations of the complaint. The fact that in order to establish the amount that the plaintiff was entitled to recover under his contract it became necessary to prove the various items upon which his compensation was based, did not constitute a cause of action different from that alleged in the words "he furnished material consisting of brick, lime, cement, sand and other building material, and furnished labor and completed said buildings and appurtenances thereto pursuant to his agreement, at the agreed price and value of" $21,061.85. The only variance of the proof offered and excluded from the allegations of the complaint would be the possibility that the aggregate would not be the same, which would be an immaterial variance. The contract had been proven, with the exception of the amount which under its provisions the plaintiff was entitled to recover. The essential elements of furnishing the labor and materials required and completing the buildings in accordance with the plans furnished him by the defendants, having been established, the aggregate amount of his recovery, although based upon fifty cents a day for each man employed, fifty cents a thousand for brick used and fifteen and ten cents per barrel respectively for cement used, was yet within the allegation of his pleading, for the aggregate constituted the "agreed price and value." The theory upon which the action was tried, viz., that the defendants had plans for the construction of the buildings which the plaintiff agreed to and did follow and comply with; that he furnished the necessary labor and materials and fully performed his contract, thereby becoming entitled to recover, as the amount agreed to be paid him, sums amounting in the aggregate to the sum alleged, was within the averments of the complaint, and the exclusion of this evidence presents reversible error.
The judgment should be reversed and a new trial granted, costs to abide the event.
HIRSCHBERG, P.J., HOOKER, GAYNOR and MILLER, JJ., concurred.
Judgment reversed and new trial granted, costs to abide the event.