Heyerman v. Kanter

Graves, J: This action was brought against defendants in error as^ special administrators of Charles Busch deceased, and the-declaration was on the common counts in assumpsit, for goods sold and delivered, work and materials, money lent,, money paid, money had and received, and money found due on an accounting. There was no count for use and occupation.. Defendants pleaded the general issue. At the trial the plaintiff claimed the right to prove and recover for use and occupation by defendants of plaintiff's store under an agreement therefor at the yearly rent of one thousand six hundred dollars. On defendants’ objection that the evidence-was not admissible under the pleadings, the court excluded it and the case is brought here to have this ruling revised. The ruling was clearly correct. I am not aware of any decision directly in point, but the doctrine which governs is quite elementary. There was no issue on the pleadings to which the offered evidence could have any relevancy whatever. The essential requirements of a declaration or count upon the cause of action attempted to be proved here are stated in many books, and none of them are contained in this declaration.—Lawes on Plead., 492 (mar.); 2 Saunders P. & Ev., 888; 2 Wheaton’s Selw., ch. XLI.; Jpp* to Burrill’s Frac., 251, 252. The judgment should be affirmed, with costs. The other Justices concurred.