Gregory Point Marine Railway Co. v. Selleck ( 1876 )

Pardee, J.

The plaintiffs in their declaration explicitly stated that their right to the immediate possession of the anchor, chain, boat and other articles named therein, rested entirely upon the fact that they had repaired a domestic vessel, of which those articles were a part, at her home port, at the request of her owner and captain, and that thereby there had come into existence as .security for the amount due for the repairs, a lien in their favor upon the vessel iand all her parts, which entitled them to such possession. They chose to limit themselves to one of the several different methods of acquiring title to personal property; by this precise averment as to the nature of their right to sue, under the rules of pleading, they assumed the burden of proving that right as they had stated it. They now say that the declaration was unnecessarily precise in statement, and that no more was required of them than to allege a mere possession. But when the pleader in a material averment narrows the issue he is held closely within his self-imposed limitations. Therefore the plaintiffs, not having contented themselves with the general averment that they were lawfully possessed of the anchor, <fce.t as of their own property; having made a particular statement of a special title, and issue having been joined thereon; failing, as the court has found, to prove it as alleged; in the absence of any amendment of the pleadings, they were not then entitled to the privilege of introducing evidence for the purpose of proving a new issue, a different title. No opportunity was given to the court to reject any portion of the averment of title as unnecessary; the statement of it is so pointed that it is incapable of division; so clear that there is no place for doubt as to its meaning. It is made to rest upon the lien; if that is taken away, nothing remains to support the case.

The plaintiffs argue that the evidence received under objection tended to show “that possession was demanded and acquired in part upon the claim of lien set forth in the declaration ; that the consideration of that claim in part, and in part only, induced Hubbard to deliver the property, and that it was in consideration in part of that claim that possession was received by the plaintiffs; ” but, the difficulty still remains; no such dual title is set out in the declaration; the pleader left himself no foundation for such an application of the evidence, nor for such an argument.

As has been said, the court finds that no lien ever existed. Presumably the defendant knew this, and that he could successfully defend his claim to the property. It is his privilege to take the pleadings into consideration in deciding whether he will expose himself to a bill of costs in contesting the issue made by them.

Upon the record it is quite clear that the possessory right upon which the judgment for the plaintiffs is based was established by the evidence objected to by the defendant; and that the right thus proven is variant from the special right set out in the declaration and was not in issue upon the pleadings.

There should be a new trial.

Li this opinion the other judges concurred.