Challenge Clothes Corp. v. Polski

Delaplaine, J., delivered the opinion of the Court. Nathan Polski instituted suit in the Baltimore City Court against Challenge Clothes Corporation, alleging that the defendant had employed him as a salesman in its store on South Conkling Street in Baltimore, and had failed to pay him his salary. He filed with his declaration a sworn statement claiming salary from November 2, 1940, to October 4, 1941, at §25 per week, §1,200; from December 29, 1941, to April 4, 1942, at §10 per . week, §140; from April 5, 1942, to May 16, 1942, at §15 per week, §90; total, §1,450. A similar suit was instituted ag;ainst the corporation by Joseph J. Popp in the Court of Common Please of Baltimore City, alleging that the defendant had employed him as cashier and salesman at a salary of §40 per week, and had paid him only §20 per week.

He filed a sworn statement claiming salary from the week ending November 9, 1940, to the week ending May 23, 1942, eighty-one weeks at §20 per week; total, §1,620. The cases were tried together in the Baltimore City Court without a jury. The plaintiffs testified that their cash salaries had been paid in full, but that they had also been promised capital stock in the corporation. Neither of the plaintiffs had any previous experience in the clothing business.

Polski, a laundry truck driver, volunteered as a friend to help in the store in the evenings and on Saturdays. He testified that soon afterwards he was promised §25 worth of stock per week, beginning November 2,1940. He was paid §15 per week from October 11, 1941, tó December 29, 1941, and in that year was also given a Christmas bonus of §100. He continued to receive a salary of §15 from December 29, 1941, to April 4, 1942, but he claimed he was promised §10 worth of stock per week during that period.

From April 5, ⁵⁹³ 1942, until his discharge on May 16, 1942, he received a salary of $20, and he swore that he was promised $15 worth of stock per week during that period. He claimed a total of 81,450 worth of stock. Popp admitted that he was paid his cash salary in full until May 23, 1942, when he was discharged. He admitted that his salary had been raised in January, 1942, to $30, and in February, 1942, to $35, but he swore that he was promised $20 worth of stock per week.

He claimed a total of $1,620 worth of stock. The trial court overruled a motion to dismiss the cases on the ground of variance. It is a familiar rule of the common law that a plaintiff cannot recover if the evidence establishes a wholly different case from that alleged. The strict enforcement of the rule, however, has been relaxed so that a substantial agreement between the pleadings and the proof is all that is now required.

In other words, a discrepancy in an immaterial matter does not constitute a variance; but a variance does arise where there is a disagreement between the allegations and the proof in respect to any matter which in point of law is essential to the claim. Cook v. Gill, 83 Md. 177, 193 , 34 A. 248 ; Wilson v. Kelso, 115 Md. 162, 170 , 80 A. 895 ; J. E. Smith Co. v. Smick, 119 Md. 279 , 86 A. 500 . Our statute provides that in any action at law any of the proceedings may be amended so that the case may be tried on its real merits and the purposes of justice sub-served. Code, 1939, Art. 75, Sec. 39.

Consequently, if it appears that the evidence establishes a case somewhat different from that stated in the declaration, and the defendant makes seasonable objection that the proof does not conform to the case as alleged, the plaintiff may avoid a variance by applying to the court for leave to amend. 1 Poe Pleading and Practice, Secs. 712, 713, 714. However, the suits before us were brought under the Speedy Judgment Act, Charter and P. L. L. of Baltimore City, 1938 Ed., Secs. 404-410. The object of the Speedy Judgment Act is to provide for the speedy collection ⁵⁹⁴ of debts by requiring from both plaintiff and defendant a definite sworn statement of both the claim and the defense, if any, so that the parties might know exactly wherein they differ and shape their action accordingly. The purpose of the Legislature in passing the Act was to narrow the questions in issue between the parties in any suit upon contract as far as practicable.

Adler v. Crook, 68 Md. 494 , 13 A. 153 ; Katski v. Triplett, 181 Md. 545 , 30 A. 2d 764 . It is