
    JOHN J. HARRIS, TRADING AS JOHN J. HARRIS CONSTRUCTION COMPANY, PLAINTIFF, v. C. H. EARLE, INCORPORATED, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT.
    Submitted May term, 1929
    Decided November 7, 1929.
    Before Justices Tbenchakd, Lloyd and Case.
    
      Eor the rule, Higbee & Higbee.
    
    Gontra, Edward S. Sharpless.
    
   Per Curiam.

This is defendant’s rule for new trial based on reasons that the verdict is contrary to and inconsistent with the pleadings, that the verdict is contrary to and inconsistent with the judge’s charge, and that it is against the weight of the evidence.

The contention of the defendant on the first point is that while the complaint alleges one form of contract, the recovery was on another form. The action was to recover rental of a steam shovel belonging to the plaintiff, and for certain wage claims which had been assigned to the plaintiff. The complaint alleged that the rental of the shovel was for the period of one month with an option to extend it for a longer time, and that during the time the defendant was using the shovel it was agreed that the extended period should be for the two additional months.

The defense was a denial of the contract as set forth in the complaint and contended that the real contract was that the shovel should be paid for at the rate of $500 per month while actually used. The whole arrangement was oral. Plaintiff’s proof tended to show that there was initially a three months’ contract at $500 per month. This came in without objection. The judge submitted the question to the jury on that issue and the jury found a verdict for the plaintiff for $983.13. This award to the plaintiff was for practically the whole amount claimed.

The substantial ground of criticism being that the proofs differed from the complaint and the case having been tried on both sides without objection, with the evidence varying slightly from the allegations in the pleadings, the defendant has on this phase of the case no cause for complaint.

Our reading of the record convinces us that the verdict is neither contrary to the weight of the evidence nor to the charge of the court.

The rule for new trial will be discharged.  