
    Gustav Muller, App’lt, v. Hermann Schumann et al., Resp’ts.
    
      (New York Common Pleas, General Term,
    
    
      Filed June 6, 1892.)
    
    1. Pleading—Contract.
    A complaint in an action upon a contract of hiring by which plaintiff is to exert himself and. use his endeavors in putting defendants in communication with foreign manufacturers, “so that they might procure the sale ” in' this country of goods manufactured by such foreign manufacturers, which does not allege that by virtue of plaintiff’s endeavors and exertions defendants did procure the sale of such goods, is fatally defective.
    2. Same—Dismissal of complaint.
    Where the plaintiff fails to prove the contract alleged in the complaint, but proves a different one, it is proper to dismiss the complaint.
    3. Trial—Request to go to jury.
    In such a case error cannot be predicated upon a refusal of a request to go to the jury on the question whether there was a contract between the parties, as'such fact is immaterial unless shown to be the contract alleged in the complaint.
    
      Appeal from a judgment dismissing a complaint at trial term of this court.
    
      F. J. Bischoff, for app’lt; John A. Straley, for resp’ts.
   Bookstaver, J.

This action was brought to recover for services alleged to have been rendered under contract with the defendants. The complaint alleges that on or about the 5th day of January, 1890, the defendants agreed with plaintiff that if he would enter their employ “ and exert himself and use his endeavors in putting them in communication with manufacturers of merchandise in Europe so that they might procure the sale in the United States and Ganada of the goods manufactured by said European manufactories," they would pay him the sum of $5,000. This means something more than an engagement for payment of services only. So that, as here employed, is equivalent to “ with the result that," or, “in such a manner that,” which seems to place the meaning of the clause beyond any controversy to be, that the exertions and endeavors were to result in the defendants procuring the sale of the goods of such European manufacturers. There is no allegation in the complaint that by virtue of his endeavors and exertions the defendants did procure the sale of the goods of these manufacturers, or otherwise. Hence, the complaint is fatally defective in this respect, and this defect is not cured by the evidence. The plaintiff at first testified as follows: “ Mr. Schumann told me he would give me; I got a letter from Europe to get the agencies ; he said, 11 am a rich man; I will give you $5,000, and I want to put in $200,000 capital in the business, and if you get your work done and all the agencies to the house, you know you get your $5,000, and you manage the business and give me one-third of the profits afterwards.’ ” But he nowhere testified, nor is there any evidence whatever to show, that he procured a single agency for the defendants. Hence, there was an utter failure to prove the cause of action alleged in the complaint. It is true that after-wards this testimony was somewhat modified in answer to a leading question put to him by his counsel, which was as follows;

“ Q. That you were to get the agencies, or try to get them? A. If I did try to get the agencies for the European houses, and if I did my best, the best what I could, he is willing to pay me $5,000.”

This testimony, if it were taken to be true, in no way tended to prove the contract alleged in the complaint, but another and an entirely different contract not alleged therein.

And there was no request to amend the pleading to conform to the proof. In Southwick v. First National Bank of Memphis, 84 N. Y., 420, the rule is stated to be that “ where the plaintiff has. failed to prove the cause of action lie has alleged, and the defendant takes proper objection thereto, and an amendment of the complaint is neither asked for nor ordered, a judgment in plaintiff’s favor upon another cause of action, not alleged, cannot be sustained on appeal." And in Truesdell v. Sarles, 104 N. Y., 164; 5 St. Rep., 565, the rule is stated to be well settled that no judgment can be given in favor of a plaintiff upon grounds not stated in his complaint, nor relief granted for matters not charged, although they may be apparent from some part of the pleadings or evidence. The principle still remains that the judgment to be rendered must be secundum allegata et probata, and this rule cannot he departed from without confusion, uncertainty and mischief in the administration of justice. Wright v. Delafield, 25 N. Y., 266; Hawes v. Dobbs, 44 St. Rep., 890.

The sufficiency of the complaint was clearly raised by defendant’s motion to dismiss it both on the opening and after the taking of testimony. And yet no amendment was either asked for nor granted. Under such circumstances we think the court below properly dismissed the complaint. The general test as to the propriety of refusing to submit a point to the jury is whether their verdict on that question, if gainst the moving party, must be set aside as contrary to the weight of evidence. Dwight v. Germania Life Ins. Co., 103 N. Y., 359; 3 St. Rep., 115; Neuendorf v. World Mut. life Ins. Co., 69 N. Y., 389; Cagger v. Lansing, 64 id., 417. As before shown, there was no question of fact which could be properly submitted to the jury or would warrant a verdict of any kind against the defendant upon the pleadings as they stood.

The request to go to the jury was on an immaterial question, and error cannot be predicated of it. It appears by the record that the plaintiff’s counsel interrupted the judge in his ruling, and stated that he desired to go to the jury on the specific question of fact as to whether or not there was a contract made between the plaintiff and defendants. Whether there was a contract between plaintiff and defendants is immaterial, as before shown, unless it was the contract alleged in the complaint, because no judgment could be awarded thereon unless it were alleged. Besides, there was no exception taken to the refusal.

We therefore think the judgment should be affirmed, with costs.

Daly, Ch. J., concurs.  