
    Frank J. McGowan, Respondent, v. Giveen Manufacturing Company, Appellant.
    
      Learn to amend by setting up the Statute of Frauds — the application therefor must be made during the trial.
    
    A defendant who contends that by the form of the complaint he has been misled into an omission to plead the defense of the Statute of Frauds, is bound to ask leave to amend his answer in that respect as soon as testimony is given indicating that such defense may be available; if lie completes the trial without doing so, he will not be allowed to assert, upon an appeal from a judgment in favor of the plaintiff, that he was deprived of his opportunity to plead such defense.
    Appeal by the defendant, the Giveen Manufacturing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered .in the office of the clerk of the county of New York on the 27th day of January, 1900, upon the verdict of a jury for $660.96, and also from so much of an order entered in said clerk’s office on the 26th day of January, 1900, as denied the" defendant’s motion for a new trial made upon the minutes, on condition that the plaintiff stipulate to reduce the verdict to $479.51.
    
      Howard S. Gans, for the appellant.
    
      Joseph F. Perdue, for the respondent.
   Rumsey, J.:

The plaintiff alleges in his complaint that on the 11th day of February, 1897, he entered the employment of the defendant as traveling salesman under an agreement that he was to receive three per cent upon his sales which should not be less than $1,000; that that sum was to be paid to him by the defendant at the rate of $20 a week, and that he was to be employed for the length of time necessary to receive and . be paid the $1,000 at that rate. The complaint then alleged that he entered upon his employment under that agreement and continued therein down to the sixth of April at which time he was without cause wrongfully discharged by the defendant, and he seeks to recover the amount to which he would have been entitled at the end of the time for which he was employed.

• The defendant admits the employment of the plaintiff on the 11th of February, 1897, but it denies that the terms and conditions of the employment are correctly stated in the complaint; it admits that the plaintiff entered upon his employment on the 12th of February, 1897, and continued in it down 'to the 6th of April, 1897, and that on that day the defendant terminated the employment and discharged the plaintiff. It alleges as a second defense that on the lltli of February, 1897, it employed the plaintiff upon the terms and conditions that the employment should be from week to week; that the plaintiff should render services as traveling salesman and should travel at his own expense to such places as the defendant might direct; that the defendant should lend to the plaintiff such sums as might be necessary to defray the traveling expenses, and that the plaintiff should repay all sums so advanced ; that the plaintiff should receive as condensation a commission of three per cent upon all sales effected by him; that the defendant should guarantee to plaintiff that his commission upon his sales would average twenty dollars a week, and should advance to him at the end of each week of such employment the sum of twenty dollars, which sums so advanced should be charged against the aggregate commissions earned by the plaintiff, and should be deducted from the amount of such commissions to be paid to him at the expiration of his employment. The defendant then set up a counterclaim for money loaned to the plaintiff, which was denied by him. Upon this state of the pleadings the parties.went to trial.

The only question presented'was whether the plaintiff was hired for so long a time as would be required to exhaust the sum of $1,000, payable in the amount of $20 a week, or whether no fixed and specified time for his employment was made or was reasonably to be inferred from the contract. No question was raised ‘ by. the pleadings as to the validity of the contract under the Statute of Frauds.

At the close of the plaintiff’s case the defendant moved to dismiss on the ground that no contract had been proved of a definite hiring; that any contract which had been established would be for a term different from that set up in the pleadings; that the evidence showed that any contract which was made between the parties was a • contract for a general hiring terminable at will; that the only contract testified to was not within the pleadings and was void under the Statute of Frauds.

That motion was denied, but was renewed at the close of the whole case upon substantially the same grounds. The court submitted to the jury the question whether the contract was for a definite time as alleged in the complaint, or was for no specified time as alleged by the defendant, and upon that submission the jury rendered a verdict for the plaintiff for the damages which he claimed to have suffered.

The first point made by the ''appellant is that there was a variance between the contract proved by the testimony and that alleged in the complaint. He claims that this variance was fatal, because if the contract sworn to by the plaintiff had been the one set up in the complaint it would have been invalid under the Statute of Frauds and the defendant would have set up that defense. To this contention there are two answers.

In the first place no such claim was made upon the trial. It is quite true that at the close of the plaintiff’s case the defendant insisted that the contract proved was not the contract pleaded, but an examination of the testimony of the parties shows not only that the contract testified to by the plaintiff was the contract set up in the complaint, but that the defendant’s counsel raised no question of the variance at the time the evidence was given ; that he made no motion to strike out the evidence nor objected to it on the ground that it did not tend to prove the contract alleged in the complaint, but it also shows that at the close of the plaintiff’s case, when the defendant’s counsel must have known if there was a variance, he made no motion to have the testimony stricken out, nor did he ask leave to amend his answer, but continued the trial without any objection to the pleadings as they stood. He knew, of course, that under a recent holding of the court of last resort in this State he could not avail himself of the defense of the Statute of Frauds unless he had set it up in his answer. (Matthews v. Matthews, 154 N. Y. 288.) If he was led by the complaint not to set up the Statute of Frauds, and he did not discover that the contract was invalid under it until after the testimony was given, he was bound as soon as he did ascertain the fact to ask leave to amend his_ answer, and if he failed to do so he must be deemed to have waived his rights by continuing the case upon 'the pleadings as they were when he went to trial.

But in the second place there was no variance between the contract set up in the complain £ and that proved upon the trial. It is quite true that the plaintiff in his testimony spoke of a proposition that he should work for a year for $1,000, but- it is very evident that the contract which was finally made was that he should work for so long a time as would be required to use up the $1,000 in payments of $20 a week. So there was clearly no error in the action of the court in refusing to- dismiss the complaint for the reasons urged by the defendant at the "close of the plaintiff’s case and at the close of the evidence.

But it is claimed that the-court in its charge committed a fatal error. At the beginning of the charge the court, stated clearly to the'jury the question to be determined, but after the charge was finished he said to .the jury,: “If you believe the contract was for a year, gentlemen, your verdict must be against the plaintiff, because the plaintiff’s claim is" for fifty weeks.” Upon further discussion he said to the jury: “I do not see how it could be for a year, because all the defendant’s witnesses said it was not even for fifty weeks, and Mr. Frank McGowan said it was not for a year, and there would be a preponderance of evidence against it being for a year. Ton cannot find there was a hiring for a year, gentlemen, If there was a hiring for fifty weeks at a thousand dollars, payable at $20 a wTeek, your verdict must be against a year.” It is claimed that this direction was erroneous and the error fatal because the jury were not allowed to find that the contract was for a year, and that for this reason the judgment should be reversed. In examining this question it is necessary to bear closely in mind the real question which was presented to the jury for their determination. That was not whether the contract was for a year or for fifty weeks, but whether it was for a determinate period of time so that the defendant had no right to dismiss the plaintiff without cause, or was a contract of hiring from week to week so that the defendant might discharge the plaintiff at the end of any week. That being the question presented to the jury, it was entirely immaterial whether the contract was for a year or for fifty weeks, because if the plaintiff established ■ either contract his discharge was unjustifiable and he was entitled to a verdict. The' defendant, therefore, cannot complain that the jury were told that the contract was not for a year, for it was not important, because whether it was for a year or for fifty weeks the plaintiff was entitled to a recovery if he was wrongfully discharged.

It is said that the difference between a contract for a year and •one for fifty weeks constituted a fatal variance in the proof. Undoubtedly if the Statute of Frauds had been pleaded the jury should have been instructed that if they found that the contract was for a year it was invalid and the plaintiff could not recover, but a mere variation between fifty weeks and fifty-two weeks is of no importance, the question being whether the contract was for a specified time.

But it is said the variation is important, because if the contract bad been for a year the defendant might have had an opportunity to set up the Statute of Frauds. The answer is that the statute was not pleaded and no request was made on the trial for an opportunity to do so. It is quite difficult to see how a party, who consents to go, to trial without interposing a defense and who never asks to interpose it during the trial, although it is evident that such a defense may be good, is at liberty when he is beaten to insist on an appeal that he was deprived of his opportunity to plead that defense. But that is precisely this case. 'Admitting that the defendant was misled by the form of the complaint into an omission to set up the Statute of Frauds, he certainly became aware at the close of the plaintiff’s case if he ever did that the statute might be a defense. But he made no ■effort to set it up then and was content to complete the trial without setting it up, and, as that defense was not made and could not be considered, the evidence about the contract not being for a year is entirely immaterial and could have worked no damage to the defendant.

It is claimed that the amount of the verdict is too large, but an ■examination of the case would indicate that the amount found by the jury was the correct amount, and if it was not the order of the ■court compelling the plaintiff to reduce the verdict from $660.96 to $479.51 by deducting the amount of his commission clearly cured. any such mistake, and for that reason the defendant is not in a situr ation to insist that the damages are excessive. We have examined the point raised as to the admission.'of testimony and find no errors therein. For these reasons we conclude that the judgment and order were correct and must be affirmed, with costs to the respondent.

Van Brunt, P. J., Ingraham and McLaughlin, JJ., concurred; Hatch, J., concurred in result.

Judgment and order affirmed, with costs.  