Smith v. . Cook

Bbogden, J. The plaintiffs base their cause of action upon a specific contract specifically set out in the affidavit, which was treated as a complaint. Ordinarily, in the absence of a. request to amend a pleading to conform to the proof, a pai’ty is restricted to the cause of action alleged in the pleading. The contract of 8 June expressly provides that it was *559 to cover only sucb lumber as was cut by tbe defendant, F. E. Oook, during the year 1927. There was no evidence on behalf of plaintiffs that the lumber seized by the sheriff was so cut during said period. Plaintiff, Smith, testified that he left about December, 1927, and there was thirty or forty thousand feet of lumber on the yard, but on cross-examination plaintiff testified, “I don’t know when this lumber was cut.” The burden was upon the plaintiffs to establish a cause of action in accordance with O. S., 831. Plaintiffs, however, introduced a mortgage made by the defendant, F. E. Cook, to Graham County Supply Company, which covered about fifty thousand feet of lumber and attempted to prove ownership by said mortgage, but the mortgage was not mentioned in the complaint, and no cause of action thereon was alleged. A complaint proceeding upon one theory will not authorize a recovery upon another entirely distinct and independent theory. Moss v. R. R., 122 N. C., 892, 29 S. E., 377; McCoy v. R. R., 142 N. C., 387, 55 S. E., 283; Green v. Biggs, 167 N. C., 417, 83 S. E., 553; Sultan v. R. R., 176 N. C., 136, 96 S. E., 897. Affirmed.