Shea v. Kerr

Citations

• 17 Del. 530
• 1 Penne. 530
• 43 A. 843
• 1899 Del. LEXIS 60

Syllabus

<p>Assumpsit—Appeal—Contract—Merger— Variance—Pleading.</p> <p>• i. If any item of plaintiff's claim is only included in, and is part of the contract specially declared on, but is not claimed or set out in the special count of the declaration, he cannot recover for such item.</p> <p>’2. If plaintiff, being entitled under the contract to two weeks’ notice before discharge, is discharged without such notice, without his consent, and while tendering himself ready to perform his part of the contract, he may recover on a special .count for the breach of the contract; and the measure of damages would be the amount defendant agreed to pay for the two weeks.</p> <p>3. It cannot be said that there is a fatal variance between the contract declared on and the one proved, if there is no inconsistency between them, and the only difference consists in this,—that the contract declared on does not set out all the facts and details of the contract proved. The plaintiff may, in setting out his contract, waive the benefit of some separate and distinct parts of the contract proved ; provided they do not vary, contradict or invalidate the contract as set forth in the declaration. What is proved, however, must be consistent with the contract set out in the declaration.</p> <p>4. This is within the rule of redundancy only in the proof, explained in 1 Greenleaf On Evidence, Secs. 67 and 68, and z Chitty on Pleading, 2gg; and is not a case resting in entirety of contract or consideration.</p>