Van Dyke v. . Maguire

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 431 No exception was taken to the report of the referee, or question made as to any ruling made by him on the trial, other than one founded upon his rejection of the defendant's offer to prove that the work and materials alleged in the plaintiffs' complaint to have been rendered and furnished by them for him had not been rendered or furnished. The defendant had, by his answer to the plaintiffs' complaint and bill of particulars before him, admitted in express terms that the plaintiffs had performed "work, labor and services, and furnished materials" for him, as alleged in their complaint; and thus the parties had, by their pleadings, agreed to what the plaintiffs had alleged in their complaint in that respect; and by this agreement they were bound to abide. "That what the parties have agreed to in their pleadings shall be admitted though the jury find otherwise" (7 Bacon's Abridgement, 459), is an ancient rule, not to be departed from, except in cases where an amendment has been ordered. All that was put in issue was the value of the services and materials. The offer was properly rejected; and the judgment should be affirmed.