Opinion
February 27, 1964.
Newton H. Levee for the defendant.
Robert W. Cornell for the plaintiff.
Exceptions overruled. The defendant, a corporation engaged in manufacturing and selling clothing, entered into a contract to employ the plaintiff's testate (plaintiff) for the period of one year from March 19, 1956, at a salary of $12,500. The employment having been terminated by the defendant as of October 6, 1956, the plaintiff, who had been paid $6,250, brought this action of contract to recover the balance of his salary. A judge of the Superior Court made a general finding for the plaintiff in the amount of $4,250. The defendant excepted to this finding and to the denial of certain requests for rulings. The exception to the general finding presents no question of law. Stowell v. H.P. Hood Sons, Inc. 288 Mass. 555. The denial of the requests reveals no error of law. There was no variance between the declaration and proof. If, as the defendant contends, the declaration was defective, it could have demurred or asked for specifications. Having proceeded to trial under it, it cannot now challenge its sufficiency as a pleading. Hill v. Trustees of Glenwood Cemetery, 323 Mass. 388, 393, and cases cited. There was evidence sufficient to warrant a finding in the plaintiff's favor, for there were no binding admissions by the plaintiff which precluded recovery. The defendant's request that the plaintiff could in no event recover more than nominal damages was rightly refused.