MCALLISTER v. UNION INDEMNITY CO

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District Court of Appeal, Third District, California.

MCALLISTER v. UNION INDEMNITY CO.*

Civ. 5097.

Decided: May 08, 1934

Kidd, Schell & Delamer, of Los Angeles, for appellant, W. I. Gilbert, of Los Angeles, for respondent.

As stated in respondent's brief, this action was instituted by plaintiff to recover from defendant the sum of $7,766.33, together with interest, as the measure of his damage arising out of an alleged breach of contract for his employment for a period of one year at an annual salary of $11,000, payable in equal semimonthly installments.

The amended complaint sets out the making of such contract about the 16th day of August, 1928, the performance of the contract for a period of one month by both parties thereto, and alleges a breach of the contract by plaintiff's employer on September 15, 1928. Material allegations of the complaint are denied in the answer, and defendant pleads as a second and separate defense that a recovery by plaintiff is barred by the provisions of subdivision 1 of section 1624 of the Civil Code. Defendant also as a third defense alleges that said contract was mutually canceled and rescinded on or about the 15th day of September, 1928.

The grounds for the motion for nonsuit were not so specifically stated as to justify a discussion of the motion in view of the fact that the judgment must be reversed upon a consideration of the entire record.

The court found that the parties entered into the contract of employment and that the terms thereof were as hereinabove stated, and further found as follows:

“VI. That thereafter and on or about the 15th. day of September, 1928, the plaintiff and the defendant entered into an oral contract whereby and by the terms of which said contract of employment was mutually cancelled, rescinded and terminated as of said date and of said time, and that thereafter the plaintiff ceased to be an employee of the defendant and ceased to render any services to the defendant.

“VII. That under and by virtue of the terms of said contract so cancelling and terminating said contract of employment, the defendant agreed to pay to the plaintiff the sum of $500.00, representing the removal expenses of the plaintiff from said Los Angeles to said San Francisco, and further agreed to pay to the plaintiff an amount equal to six weeks' salary at the rate of $11,000.00 a year, and that the plaintiff agreed to accept said $500.00 and said six weeks' salary.

“VIII. That the defendant did pay to the plaintiff and the plaintiff did accept the said sum of $500.00, but that the defendant has not paid to the plaintiff the said sum equal to said six weeks' salary or any part thereof.

“IX. That it is not true that the defendant at any time wrongfully discharged the plaintiff.”

Evidence offered by plaintiff, and the findings of the court to the effect that the cancellation agreement was entered into and that defendant did not at any time discharge the plaintiff, show conclusively that plaintiff had no legal right to recover upon the alleged contract. The court finds the execution and breach of an entirely different contract. The contract alleged in the complaint is a contract of employment, while the agreement upon which the judgment is based is one entered into by the parties at a later date and after part performance of the original contract, terminating the contract of employment under certain conditions and considerations not mentioned or alleged in the pleadings. The plaintiff must recover, if at all, upon the cause of action alleged and not upon some other which may appear from the proofs. Bailey v. Brown, 4 Cal. App. 515, 517, 88 P. 518; Shenandoah M. Co. v. Morgan, 106 Cal. 409, 417, 39 P. 802; Davis v. Pac. Tel. Co., 127 Cal. 312, 321, 57 P. 764, 59 P. 698.

There was not only a variance between the proof and the allegations of the pleadings, but a failure to prove the cause of action alleged. Respondent had the opportunity to amend, but failed so to do, and takes the position that, under the provisions of section 462 of the Code of Civil Procedure, the special defense that the contract sued upon was canceled and rescinded is deemed controverted by the opposite party. To that extent his position is sound, but he further contends, in effect, that the special defense, having been pleaded by defendant and denied by plaintiff, raises an issue upon which plaintiff may recover by proving his own cause of action to be groundless. Appellant puts himself in the anomalous position of invoking the statute to deny a defense set up by respondent, and in the next breath asserting the right to affirmative relief based upon the issue raised by his own denial. It does not follow that he can upon that state of the pleadings admit the cancellation and prove the terms and conditions of the new contract and recover thereon. The fallacy of his position is apparent for the reason that the defendant in the action was deprived of his right to be informed by the plaintiff's pleadings of the matters he was called upon to defend against, and was deprived of his right to plead all the defenses he may have. Appellant was not called upon to anticipate the proof of a contract not alleged in the complaint and plead his defenses to such contract. Neither the pleadings nor the findings material to the issues support the judgment entered.

The judgment is reversed, and the trial court is directed to enter judgment for the defendant in accordance with the views herein expressed.

RANKIN, Justice pro tem.

We concur: PLUMMER, Acting P. J.; R. L. THOMPSON, J.

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