Willis v. Branch

MerrimoN, J. (after stating the facts). It is the office of the complaint to state in a clear, succinct, and intelligible manner, ■the plaintiff’s cause of action, and to demand judgment upon the same. The plaintiff cannot go to trial and recover upon a cause of action developed by facts stated in the answer, without alleging it himself. He must allege the cause of action in his complaint, and when the facts of the same are put in issue, prove them by competent evidence. He cannot rely upon a cause of action suggested in the pleadings by his adversary. Shelton v. Davis, 69 N. C., 324; Rand v. The Bank, 77 N. C., 152; McLaurin v. Cronly, 90 N. C., 50. It is true, that in some cases, a defective or imperfect statement of a cause of action, may be aided by admissions in the answer, as was decided in Garrett v. Trotter, 65 N. C., 430, and Johnson v. Finch, 93 N. C., 205, but this is not one of them. In this case, the complaint does not allege or assign a breach of the contract of lease. The lease is referred to simply for the purpose of showing the character of the plaintiff’s right to have possession of, and use the hall and fixtures for his own benefit. The gravamen of the action, is the alleged trespass of the defendants “in tearing out from their place in said hall, the gas-fixtures put there by the plaintiff,” the removal of the same, injury to the furniture, and depriving the plaintiff of the use of the hall and furniture. This is the cause of action specified, and there is none other. It may be, that the plaintiff might have alleged a breach of the contract of lease on the part of the defendants in interfering with his possession, and in failing to do certain things they stipulated to do, but it is obvious he did not do so. It is not sufficient that a party has a cause of action— he must allege it in such intelligible way, as that the Court can see, and take jurisdiction of it, and administer his right, if he shall establish it. On the argument, the appellee’s counsel contended, that the variance between the allegation and the proof was immaterial, or if material, it had not rpisled the adverse party to his prejudice, [148] and under the liberal practice allowed by The Code, the plaintiff ought to be allowed to prove a breach of the contract. But broad and indulgent as are the provisions of The Code in respect to matters of pleading and practice, they do not dispense with a sufficient allegation of a cause of action to make it appear in the record, nor do they go to the latitudinous extent of allowing a party to prove a cause of action not alleged at all. Variances arise when the cause of action is alleged in the pleadings, and the proofs offered do not sustain it. In such cases, if the variance is immaterial, it will be disregarded; if material, and it misleads the adverse party, the Court may allow appropriate amendments to avoid it, upon just terms as to the trial and costs. The Code, §§269, 270. As we have seen, no breach of contract was alleged in the complaint. The evidence offered in that respect, was therefore irrelevant, and no aspect of variance was presented. Eor the like reason, the first issue wms impertinent. It was not raised by the pleadings, and ought not to have been submitted. The issues proper to be tried, must always arise upon the pleadings. Immaterial and impertinent issues ought not to be submitted to the jury. They never fail to produce more or less confusion, and in some cases, as where they are calculated to mislead or obscure the real issues, they afford good cause for a new trial. Miller v. Miller, 89 N. C., 209; Waddell v. Swan, 91 N. C., 108. The first exception, therefore, must be sustained. And so also must the second exception. The plaintiff himself testified that he had “ paid no rent except the first quarter, as I considered damages for removing my gas tank had paid it.” It appeared that there was more than one quarter’s rent due. The alleged damages did not constitute a legal set-off against the rent. The pleadings presented no equitable feature in the action. There was evidence tending to show that a quarter’s rent was due and unpaid, and none tending to show that it had been paid, and the Court ought to have so instructed the jury. [149] The case states that the Court charged the jury, “that the measure of damages were the probable profits which the plaintiff would realize from his lease, after payment of rent and expenses.” In this there is error. If the plaintiff was entitled to recover, his measure of damage was a sum of money equal to the cost of returning the oil tank, the gas-fixture, repairing the furniture injured, and such consequential damages as were the direct result of the trespass; such as his inability, by reason of the injury, to use the hall, until it could be refitted for use, as it was at the time the injury was done. Hence also, if the plaintiff had existing engagements for theatrical entertainments, that were disappointed by the injury, damages sustained on that account might be embraced, but not for such as he might probably have had. The instructions given by the Court, were far too broad and indefinite — it embraced possible speculative damages, arising indirectly and remotely as a possible conseqence of the trespass. Such damages' are not recoverable. In the order of things and the course of business, the plaintiff might repair the injury and go on with his business. It is neither just nor reasonable that he should be allowed to abandon his business because of the trespass, and compel the trespassers to pay him a sum of money he might, by remote possibility, have realized from it in the course of an indefinite period of time. The trespass did not create in him the right to quit his business and have from the trespassers a gross sum of money, that he might perhaps have gotten by industrious and persistent effort. Boyle v. Reeder, 1 Ired., 607; Foard v. The Railroad Co., 8 Jones, 235; Sledge v. Reid, 73 N. C., 440; Mace v. Ramsey, 74 N. C., 11; Roberts v. Cole, 82 N. C., 292; Seely v. Alden, 61 Pa. St., 302; The Railroad Co. v. Hale, 83 Ill., 360. In what we have said in respect to the measure of damage, we have not adverted to the fact that the plaintiff was not the absolute owner of the property, but a lessee for the term of five years, because the defendants were his lessors, and the owners [150] subject to the lease. If they were trespassers, they were bound to make reparation, and the property will return to them when the lease shall be over. There is error, for which there must be a new trial. To that end, let this opinion be certified to the Superior Court according to law, and it is so ordered. Error. Reversed.