
    John Clark v. A. M. Holbrook et al.
    When a supplemental petition is filed, in which a larger amount is claimed than was demanded in the original petition, such amendment is material, and should be served upon the defendant, and regularly put at issue; and when this is not done, it will be presumed that plaintiff has waived or abandoned it.
    PPEAL from the Fifth District Court of New Orleans, Eggleston, J.
    . G. 8. Lacy, for plaintiff. L. Madison Day, for defendants and appellants.
   Land, J.

This suit is for the recovery of damages for an alleged violation of contract. The defendants, through their treasurer, R. Tenbroeclc, entered into a contract with the plaintiff, to build on the Metairie Bace Course, a stand, two sets of stables, and a cistern, and obligated themselves to pay to him five hundred dollars, “ when there was work enough done to amount to seven hundred and fifty dollars," and for the balance of the price of the work stipulated, that plaintiff should have “ free use of the Race Course, stands, stables, gates, &c., for each week succeeding the regular meetings of the Metairie Jockey Club."

The regular meeting of the Club for the spring of 1855, commenced on Monday, the 9th day of April, and the defendants having refused to permit the plaintiff to have the free use of the course, stand, stables, &c., on the following Monday, April I6th, 1855, this suit was instituted to recover damages for the violation of contract on the day last mentioned.

We are satisfied from the evidence, that the first week of the regular spring meeting, ended on Sunday, April 15th, and that the plaintiff was entitled to the use of the course on the Monday following, when he was deprived of it by the defendants.

In his original petition, the plaintiff claimed the sum of twelve hundred dollars as the amount of damage sustained; to which the defendants filed an answer, denying all the allegations, except that of the execution of the contract, which was expressly admitted. The answer was filed May 11th, 1855, and on the 2d of May, 1856, the plaintiff filed a supplemental petition, in which he alleged, that the damage sustained by him, on account of the acts of the defendants, as set forth in the original petition, amounts to the sum of twenty-five hundred dollars, and prayed for judgment against the defendants in solido, for the same. The new demand of thirteen hundred dollars, contained in the supplemental petition, "was never put at issue, either tacitly by a default or expressly by the answer of the defendants. The amendment was material, and should have been served on the defendants and regularly put at issue, and as it was not done, the plaintiff is presumed to have waived or abandoned it.

The judgment of the lower court was against the defendants for the sum of two thousand dollars as damages, with five per cent, per annum interest from the 1st of May, 1855. As the sum claimed in the original petition was only twelve hundred dollars, and as the supplemental petition was never put at issue, the judgment is erroneous.

It is, therefore, ordered, adjudged and decreed, that the judgment be reversed; and it is now ordered, adjudged and decreed, that the plaintiff do have and recover jointly from the defendants, A. M. Holbrook, R. A. Porter, R. Tenbroeclc, James Burnham, Buncan F. Kenner, and H. J. Ramsey, the sum of twelve hundred dollars, as damages, with five per cent, per annum interest thereon, from the 1st of May, 1855, and the costs of the lower court. It is farther ordered and decreed, that the plaintiff pay the costs of this appeal.  