
    Charles E. Copeland et al., Resp’ts, v. The Johnson Manufacturing Company, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 24, 1888.)
    
    1. Pleadings—Complaint — Amendment of—Proof of a quantum meruit.
    In an action to recover against a corporation the declaration in the complaint was for work, labor and services performed by the plaintiff for the benefit of the defendant under a contract made and entered into by himself (president of the defendant company) and two of the other four trustees of the company, for the payment to him of a fixed compensation for the performance of certain services rendered by him to the defendant. Held, that the court had power to allow an amendment of the complaint so that upon the trial of the action the value of the services rendered under a quantum meruit could he proved.
    
      '% Same—When amendment not needed.
    The complaint being for work, labor and services it was entirely sufficient without amendment to admit of proof as to the value of said services under a quantum meruit.
    
    3. Corporations—Services by officers of—Ground of recovery for.
    An officer of a corporation, if he has any claim for services rendered or for materials furnished to the corporation, can only recover upon a quantum meruit, not upon an agreement as to price.
    Appeal from a judgment entered upon tho verdict of a jury rendered at New York county circuit.
    The facts not stated in the opinion will be found in the report of the opinion of a general term of the same department on the hearing of the case before reported in 14 N. Y. State Rep., 245.
    
      Sutherland Tenny, for app’lt; Robert L. Harrison, for resp’ts.
   Van Brunt, P. J.

When this action was up on appeal before, a recovery had been had upon proof of certain agreements between the assignor of the plaintiff, who was president of the defendant, and two other of the trustees of the defendant, fixing compensation for the performance of services rendered by him to the defendant and the judgment was reversed upon what has now become the familiar principle that an officer of a corporation cannot make a binding agreement with it, but if he has any claim for services rendered or for materials furnished, he can only recover upon a quantum meruit, not upon agreement as to price. 14 N. Y. State Rep., 245.

Upon the new trial of this action, evidence as to the quantum meruits was offered, which was objected to by the defendants’ counsel as not being with the pleadings which objection was sustained, and the plaintiff was thereupon,, over the exception of the defendant, allowed to amend his complaint alleging the reasonable value of the services.

It is claimed that the court had no power to allow this amendment, upon the ground that it substantially changed the cause of action. .

This objection does not seem to be well founded. The cause of action was not changed.

The declaration was for work, labor and services and such the declaration remained even after the amendment. The method of proving the damages only was changed.

It would appear that the complaint was entirely sufficient originally to admit of proof as to the quantum meruits.

The rule under the old system of pleading was that under an indebitatus count in assumpsit or debt, the plaintiff may recover although there is no proof of fixed price. Chitty on Pleading, vol. 1, p. 842. Under this rule of pleading the complaint in this action was sufficient to admit evidence of the quantum meruits without amendment.

The objection that the complaint never was in fact amended does not seem to be well founded as the amendment was reduced to writing, duly ordered to be made, and even if omitted from the judgment, the irregularity cannot avail upon this appeal as the record before us shows that the amendment had been actually made.

The exception to so much of the charge as submitted to the jury the question of subsequent ratification of the rendition of the services has no foundation.

There was sufficient evidence to bring the case within the principle of Jackson v. New York Central Railroad Company (2 T. & C., 653), which case was subsequently affirmed by the court of appeals.

The judgment appealed from should be affirmed, with costs.

Daniels, J.

I agree to affirm for the reasons assigned also for the further reason that under section 723 of the Code of Civil Procedure, the court was fully empowered to make the amendment which was allowed. It was no more than inserting another allegation material to the case, which this section expressly authorizes.

Bartlett, J., concurs.  