
    Addison R. Baldwin, App’lt, v. Elmendorf Rood, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23, 1888.)
    
    1. Pleadings—Amendment oe on trial—What not allowed.
    Where the complaint in an action alleges a tort,the court has no power upon the trial to allow it to be so amended as to allege a cause oí action based on contract.
    
      %. .Jury—What questions cannot be submitted
    Questions upon which no issue has been joined cannot be submitted to the jury.
    
      Motion by plaintiff for a new trial founded upon exceptions taken on the trial of the action, at the Monroe circuit, and ordered to be heard at general term in the first instance.
    At the close of the evidence, the plaintiff’s counsel moved for a leave to amend the complaint so as to make it an action on contract, without stating the character of the new cause of action intended to be set forth in the amended complaint. The motion was denied and the plaintiff excepted. The plaintiff thereupon made a request to go to the jury upon all the questions in the case, and particularly as to whether or not the plaintiff paid the notes described in the complaint under a mistake, which request was denied, and the plaintiff excepted. Thereupon the defendant’s motion for a nonsuit was granted, and the plaintiff again excepted.
    
      Turk & Barnum, for pl’ff; C. C. Davison, for def’t.
   Barker, P. J.

It is alleged in the complaint, as the plaintiff’s cause of action, that the defendant was about to conclude a sale of some personal property, of which he was the owner, to one Maria Strong, upon credit, and with a view of securing payment of the notes which she intended to make and deliver to the defendant for the purchase price.

The defendant solicited the plaintiff to become a party thereto, and, to induce him to do so, the defendant made certain false, fraudulent and untrue statements, relative to the value of the property, with intent to injure and cheat and defraud the plaintiff.

The sale was concluded, and the plaintiff joined in the execution of the notes, either as maker or endorser, in which capacity is not clearly established by the evidence.

The principal debtor, on account of her insolvency, was unable to pay the notes, and, after their maturity, the same were paid by the plaintiff to the defendant upon his demand. On the former trial, the plaintiff had a verdict which this court set aside, holding, among other things, that the plaintiff failed to establish any fraud on the part of the defendant, in procuring the plaintiff to become security for the payment of the notes. The evidence upon the trial, now under review on that question, is precisely the same. The alleged cause of action is for a tort, and the court had no power on the trial to amend the complaint, changing the cause of action to one upon contract.

Neither the exception to granting a non-suit, nor the one to the refusal to allow the complaint to be amended, were well taken.

On this trial the plaintiff gave some evidence tending to show that he endorsed the notes and did not sign the name as maker, and that the defendant gave the plaintiff notice at the proper time, that he had demanded payment of the note of the maker, which had been refused, and that he should look to the plaintiff for its payment.

The plaintiff also gave evidence tending to show that the defendant did not demand payment of the note of the maker at its maturity, and that the statement, contained in the notice of protest, that he had done so, was false and untrue. It was upon this evidence that the plaintiff claimed that he had paid the money, under a mistake of fact, and was entitled to recover back the same in this action.

None of these facts were alleged in the complaint, and no issue joined upon the question thus presented, and the court properly refused to submit the same to the consideration of the jury.

Upon this motion we can only consider the exceptions, and ,as it appears that none of them were well taken, the motion for a new trial is denied, and judgment ordered for the defendant, with costs.

Haight, Bradley and Dwight, JJ., concur.  