Squires v. Penfield

SEABURY, J. The complaint alleges a cause of action for legal' services rendered at the request of the defendant. Proof was offered to establish, and the case was tried upon, the theory that the plaintiff was entitled to recover upon a contract of employment as broker. It seems to have been recognized at the outset of the case that the plaintiff could not establish the cause of action alleged, and the proof which was offered was accepted upon the understanding that, if a cause of action different from that alleged was proved, the defendant would be allowed to amend to enable him to meet the cause of action proved. Subsequently the defendant’s motion to amend his answer was denied. While the practice pursued upon the trial is not to be commended,, it is obvious that, if the plaintiff was to be allowed to prove a different cause of action from that alleged, the defendant should have been permitted to offer evidence tending to establish a defense to the cause [349] ■of action proved. This the defendant was not permitted to do, although the defendant seems to have consented to the proof of the new •cause of action upon the distinct understanding that he should be permitted to amend his answer. It is now conceded by both counsel that the court submitted the case to the jury in. its charge upon an incorrect theory. The record shows that it is at least doubtful whether the ■plaintiff proved any cause of action at all against the defendant. As the judgment must be reversed because the case was tried upon .an erroneous theory, it is unnecessary at this time to discuss the other .grounds of error which are assigned by the appellant. Judgment reversed, and new trial ordered, with costs to appellant ito abide the event. GUY, J., concurs.