
    John Reed, App’lt, v. George McConnell, Survivor, Resp’t.
    
      (Court of Appeals,
    
    
      Filed May 24, 1892.)
    
    1. Pleading—Cause op action—Judgment must bb on cause ci? ACTION PLEADED.
    The plaintiff’s complaint contained two causes of action: (1.) for work, labor and services, and money paid and materials furnished by him in building a tannery on premises of defendants; (2) that the were rendered and furnished under an agreement that they would take him into-partnership, which they afterwards refused to do, and he claimed damages. On the-trial it appeared that the oral agreement contemplated a, partnership for twelve years, but plaintiff was permitted against defendants’ objection to show the value of a bark contract obtained by him for the supply of the tannery, in order to show what the profits of the business would have been. At the conclusion of plaintiff’s evidence defendants moved to dismiss the complaint on the ground that the contract was void under the statute and that the evidence as to the bark contract was immaterial, and the motion was denied, and when plaintiff rested defendants specifically took the point that the contract proved was void by the-statute, but the trial judge gave judgment for plaintiff including the value of the bark contract. Held, error; as the recovery was on a cause of-action not alleged in the complaint, and the defendants had not by their silence or conduct acquiesced in the trial of the new cause of action on. which the judgment proceeded.
    
      3. Same—Waiver.
    The defendants did not waive their rights by not objecting to the evidence of the value of the bark contract when it was first offered specifically on the ground of the statute, as plaintiff had ample notice of the ground taken at the close of the evidence and applied for no amendment of the complaint.
    Appeal from judgment of the supreme court, general term, third department, reversing judgment for plaintiff, entered upon decision of special term upon a trial without a jury.
    
      Matthew Hade and Edgar T. Brackett, for app’ltF. A. Smith, for resp’t.
    
      
       Affirming 41 St. Rep., 815.
    
   Andrews, J.

This is an appeal from an order of the general term, reversing a judgment for the plaintiff entered upon a decision of the court on a trial without a jury, and granting a new trial. It not appearing that the order of reversal was upon the facts, it is conclusively presumed that the reversal was upon the law, and the order must be sustained if it appears that any material error of law, pointed out by proper exception, was committed on the trial against the party against whom the judgment was rendered

The court on the appeal from the order will scan the whole record, and all exceptions taken on the trial by the party obtaining the order of reversal are before the court for consideration. 'The court is not confined to the examination-of the exceptions upon which the general term granted the order. If upon any ground the order is justified, it must stand, even although..we may disagree with the general term as to the particular ground upon which it proceeded. The whole record is before us and all the exceptions, and the respondent may challenge every ruling of law against him contained in the record, and the court must find that no error was committed to his prejudice in any ruling to which exception was taken before it can reverse the order granting a new trial. People v. Board of Supervisors, 70 N. Y., 228; Mackay v. Lewis, 73 id., 382; Roberts v. Baumgarten, 126 id., 341; 37 St. Rep., 482.

There is an insuperable difficulty in the way of the plaintiff on this appeal. He has been permitted to recover upon a cause of action not alleged in the complaint. He sought in his pleading to recover damages for the breach of an alleged contract. He failed to establish that any valid contract was made, for the reason that the contract proved was void by the statute of frauds. It was substantially admitted by the plaintiff on the trial that the contract sued upon was within the statute, but it was contended on his behalf that the defendants having insisted upon the statute as a bar to the enforcement of the contract, the plaintiff was entitled to recover in this action the value of any property received by the defendants from the plaintiff thereunder.

The defendants insisted that this was a new and different cause of action, not within the pleadings, and inconsistent with ■the cause of action alleged in the complaint The plaintiff made ho application for amendment. The trial judge overruled the contention of the defendants and awarded to the plaintiff, among ■other things, the sum of $12,500, as the value of a bark contract, which the court found was a contribution of the plaintiff to the tannery enterprise, which was the subject of the void contract.

For a proper understanding of the question, some of the essential facts should be stated. The complaint contained two causes of action. The first was for work, labor and services, and money paid -and material furnished by the plaintiff in building a tannery on premises of the defendants. The complaint for a second cause of action alleged that the work, labor and services, ■and the money and materials mentioned in the first cause of action, were rendered and furnished “ under an agreement with the defendants that they would take the plaintiff as an equal partner with the defendants in the tannery business to be carried ■on at the said tannery ; that after the completion of said tannery by the plaintiff the defendants refused to take the plaintiff in as ■said partner, although often requested so to do, by means whereof the plaintiff has been damaged in the sum of fifteen hundred dollars, wherefore the plaintiff demands judgment,” etc. This was plainly a cause of action for damages for the breach by the defendants of the contract to admit the plaintiff as a partner in the tannery business. The nature of the alleged contract, whether verbal or written, was not alleged in the complaint.

The answer denied the contract alleged, and interposed several ■defenses and counterclaims.

• On the trial the plaintiff, in support of the second cause of •action, gave evidence tending to show that in March, 1877, the plaintiff solicited the defendants to build a tannery on premises for which he had a contract of purchase. The plaintiff, at the same time, held a verbal option from one Griffin to purchase from the latter 50,000 cords of bark from his lands in the vicinity for the price of fifty cents a cord. It was thereupon verbally agreed between the plaintiff and defendants that the defendants should furnish the plaintiff the money necessary to complete the purchase of the tannery site and erect the tannery.,

The plaintiff was to cause the proposed site to be conveyed to the defendants, and to give the defendants the benefit of his verbal option from Griffin for the purchase of the 50,000 cords of bark, and procure Griffin to enter into a contract with them for the sale of the bark on the terms of the verbal option. The plaintiff was to superintend the building of the tannery, and when completed was to conduct the tannery business therein for the defendants, and was to receive as his compensation $1,000 a year and one-third of the net profits.

The tannery site was conveyed to the defendants; the plaintiff procured Griffin to enter into a contract with the defendants to ¡sell to them the 50,000 cords of bark at the price of fifty cents a ■cord; the tannery was built, and the plaintiff conducted the business therein until October, 1878, when, as is found by the trial judge, the defendants in violation of' their contract, and without cause, discharged him, and refused further to carry out their contract with him. The evidence shows that it was contemplated •that this arrangement between the parties was to continue twelve years, that being the period which would as supposed be required to exhaust the. bark purchased of Griffin.

The plaintiff as part of his case was permitted, against the objection of the defendants that the evidence was incompetent and immaterial, to show the value of the bark contract. On the assumption that the contract between the plaintiff and the defendants was valid, the evidence was competent.

The contract had been wrongfully broken by the defendants. By the contract the plaintiff was to share in the profits of the business. The fact that the defendants had a favorable contract, for the supply of the tannery with bark might properly be considered in determining what the profits of the business would have been, and the loss sustained by the plaintiff from the breach of the contract of employment. When this evidence was intro.duced no question had been specifically raised as to the validity of the contract under the statute of frauds either in the pleadings or on the trial. But at the conclusion of the plaintiff’s evidence the defendants moved to dismiss the complaint as to the second count on the ground that the contract proved was void under the statute, and also to strike out all the evidence as to the bark contract as immaterial. The motions were denied, and exceptions, were duly taken.

Upon the conclusion of the evidence, the plaintiff’s counsel insisted that “ the contract being void by the statute of frauds, the plaintiff is entitled to recover the value of his contribution to the tannery enterprise,” and, among other items, the value of the bark contract.

This claim was resisted by the counsel for the defendants on the ground that the plaintiff having failed to establish the cause of action on the contract, was not entitled to recover on the theory that, the contract being void, the defendants were liable for the value of property contributed by the plaintiff thereunder. The trial judge overruled the contention of the defendants and awarded judgment for the plaintiff, which included the sum of $12,500, the value as found of the bark contract.

This recovery was in violation of the rule that no judgment can be sustained in favor of a plaintiff on a cause of action not alleged in the complaint, unless the defendant by his silence or conduct acquiesced in the trial of the new and different cause of action, upon which the judgment proceeded.

The tendency of modern legislation justly favors a liberal construction of pleadings in the interest of substantial justice. The Code requires that the allegations of a pleading shall be liberally construed to promote this object. Code, § 519. The courts, adopting the new spirit, no longer apply the technical and artificial rules which formerly prevailed, whereby the rights of parties were often subordinated to the mere form in which the rights were asserted. But the rule that a party7 coming into court asserting one cause of action cannot recover on another and different one is unchanged. It is essential to the orderly administration of justice and the protection of the rights of litigants. Lawyers could never safely advise their clients and parties would frequently be. misled if any other rule was admitted. Where a cause of action is imperfectly stated, or on the trial a variance is disclosed between the pleadings and the proof, not affecting the essential nature of the claim asserted, the court has ample power to grant relief without turning a party out of court.

But where the allegation of the complaint is unproved, not in some particular or particulars only, but in its entire scope and meaning, it is not a case of variance, but a failure of proof, and no judgment can be rendered in favor of the plaintiff upon the pleading as it stands. This is the statute rule and was the rule of the courts before the statute. The authorities upon these general propositions are numerous. - We refer to some recent ones only. Southwick v. First Natl. Bank, 84 N. Y., 420 ; Truesdell v. Sarles 104 id., 167 ; 5 St. Rep., 565.

Testing the present case by these rules, it is clear that the judgment rendered for the plaintiff for the value of the bark contract was erroneous. The plaintiff alleged a contract in his second ■count, and its breach, and demanded damages- in the sum of .$15,000. It turned out on the trial that he had no contract and therefore that the defendant could not have broken any contract with the plaintiff. The cause of action alleged was not only not made out, but was affirmatively disproved. There was no basis for any recovery by the plaintiff on his second cause of action. The cause of action should have therefore been dismissed. But he was allowed to recover notwithstanding his failure to prove the contract he alleged, because in acting under the void contract he had pursuant to its terms transferred certain property to the defendants, and it is claimed that the defendants having insisted that the contract was void under the statute, they were bound to restore to the plaintiff any property, or the value of any property they had acquired from or through him in pursuance of the contract and before its repudiation. The general principle that a party to a void contract cannot repudiate it and retain what he has received from the other under it, is well settled. Day v. N. Y. C. R. R. Co., 51 N. Y., 583, and cases cited. The law in such case will raise an implied assumpsit in favor of the other party, to accomplish justice and prevent fraud. But a cause of action founded on a contract to recover damages for its breach, and a cause of action to recover the value of property received thereon by the party who aferwards repudiates it as void by the statute of frauds, are fundamentally different

The claim that there was no valid contract, and that, therefore, there is a right of action for the value of property received under it, is totally inconsistent with a claim to enforce the contract and to recover upon it It is quite immaterial that the value of the bark contract may have been a material fact in support of the -cause of action alleged, or that it supplied the basis for a recovery in an action brought upon the theory that the contract was void. This action was not brought upon that theory, and because facts are developed in the trial of one cause of action which suggest a right of recovery in an action for a different cause does not .authorize the substitution of the latter cause for the one alleged.

The argument urged by the appellant that the defendants waived their rights by not objecting to the evidence of the value of the bark contract when it was first offered specifically on the-ground of the statute, is not, we think, tenable. They objected generally that the evidence was incompetent and immaterial. When the plaintiff rested, they specifically took the point that the contract proved was void by the statute. The plaintiff had ample notice of the ground taken. He applied for no amendment of the complaint, but on the contrary insisted that he was. entitled to recover the value of the bark contract under the pleadings as they stood.

We are also of opinion that there was error in computing the amount of the money judgment awarded to the plaintiff under the first count of the complaint.

But without going into this matter in detail, and without considering the question upon which the general term proceeded, we think the order should be affirmed, for the reason that the plaintiff failed to establish the second cause of action stated in the complaint, and that the recovery of the value of the bark contract (if recoverable at all) could not be had in this action.

The order should be affirmed and judgment absolute directed for the defendants on the stipulation, with costs.

All concur.  