Marks v. Roberti , 51 Nev. 150 ( 1928 )

Plaintiff had the right to elect his remedy. An examination of the contract contained in the lease shows that the contract is upon its face unenforceable for uncertainty and indefiniteness, and therefore the plaintiff did elect the only remedy available to him to recover for the value of the hay and wheat furnished to the defendant. He could not sue for specific performance of such a contract, neither could he sue for breach thereof and for damages. R.C.L. sec. 348 (Contracts), vol. 6; Price v. Weisner (Kan.), 111 P. 439; 6 R.C.L., p. 59-62; Seibert v. Smith, 49 Nev. 120; Clarke on Contracts, p. 777, sec. 318; Harwood v. Carter, 47 Nev. 334; Lapham v. Osborne, 20 Nev. 168; Burgees v. Helm, 24 Nev. 242; Livingston v. Wagner, 23 Nev. 57; 15 Cyc. p. 253, and cases cited; 6 R.C.L. Election of Remedies.

Chapter 17 of the civil practice act, sec. 5080, provides that where the adverse party is not mislead by a variance between the allegations in a pleading and the proof offered at the trial, the variance is to be deemed immaterial, and, where it appears that the defendant has been mislead, the court may order an amendment on such terms as may be just. Having failed to attack the complaint on the seventh statutory ground of demurrer in order that the complaint might have been made more definite and certain before interposing his answer, the defendant cannot claim that he was mislead. Burgess v. Helm, 24 Nev. 242; Harwood v. Carter,47 Nev. 334. The plaintiff adopted the wrong remedy. We say that plaintiff should have sued on his contract, and that the damages would be the reasonable value of the goods on the ranch in 1927, and not in 1924. In 36 C.J. 103, that under an agreement to leave certain produce on the premises, it is held that the landlord's remedy is not by action of trover, but by action for breach of agreement. The rule is also laid down in 4 Encyclopedia of Pleading and Practice, at page 925.

Section 5082, Rev. Laws, expressly states: "That where the allegation to which the proof is directed * * * is unproved in its scope and meaning, it is not a case of variance but failure of proof." In the case at bar the plaintiff falsely claims in his complaint that he had sold us hay in 1924 for which we agreed to pay him $25 a ton, then he comes into court and proves an entirely different contract.

Not one of the cases cited by counsel for appellant is in point. Most of them refer to an executory contract, where there was something yet to be done by the plaintiff which he was prevented from doing by the defendant, or where the defendant had violated the contract so as to absolve the plaintiff from performing the rest of his. But it is well-settled law that where there is an express contract you must sue on the express contract.

An amendment which changes the cause of action is not allowable. Sutherland C.P. P., sec. 788A (1917); Alt Peter v. Postal, 2 Nev. 15.

Plaintiff must recover upon the cause of action set out in the complaint, and not upon some other which may be developed by the proofs. Mondran v. Goux, 51 Cal. 151; Lindley v. Fay, 119 Cal. 239,51 P. 333.

A party cannot be presumed to be apprised of any facts by the pleading of his adversary except those stated therein. Ester v. Simpson, 13 Nev. 472.

The pleading and the proof must correspond. 4 Cyc. 356; Lafferty v. Day, 3 Ark. 258; Wilkenson v. Mosdy, 18 Ala. 288; Menifee v. Higgens, 57 Ill. 50; Foerster v. Foerster, 38 N.E. 426; Colburn v. Pomeroy, 44 N.H. 19; Little Klamath v. Ream, 39 P. 998; Davidson v. Ford, 23 W. Va. 617.

OPINION This action was brought to recover judgment in the sum of $712. Omitting the formal portions, the complaint alleges:

"That on ____ day of February, 1924, the plaintiff furnished to the defendant twenty-six ton of hay of the reasonable value of $25 a ton and of the total value of $650 and nineteen (19) sacks of wheat, weighting about one (1) ton, of the reasonable value of $62 at the total value of the hay and grain so furnished by the plaintiff to defendant as aforesaid the sum of seven hundred and twelve dollars (712) which defendant promises and agreed to pay to plaintiff, the sum being the reasonable value of the hay and grain aforesaid."

The complaint also alleges that the defendant had failed and refused to pay for said hay and grain, or any part thereof, and that defendant is indebted to the plaintiff in the sum of $712, which sum plaintiff had often demanded of the defendant.

The answer was, in substance, a general denial.

Upon the trial of the case the plaintiff was called as a witness in his own behalf, and after some preliminary questions his attorney said:

"Just go on and tell the court what occurred with reference to this hay, if anything."

The witness stated:

"I leased it and I left the hay on the place. It was there ever since I leased it in 1916."

There was an objection on the ground that there was no allegation as to a lease in the complaint — no suit on a lease — and hence the evidence was outside of the issues. After a statement had been made by counsel for plaintiff, and some argument, the court admitted in evidence, over objection and subject to a motion to strike, the lease.

The lease contains the following condition:

"And it is further understood and agreed that the party of the first part shall and will leave upon the premises above described for the use and benefit of the party of the second part, twenty (20) sacks of wheat (18 seed and 2 chicken) and thirty (30) tons of hay.

"And it is further agreed that the party of the second part, at the expiration of this lease, will leave upon the premises leased herein twenty (20) sacks of wheat (18 seed and 2 chicken) and thirty (30) tons of hay, for the use and benefit of the party of the first part herein."

The plaintiff gave evidence of the value of the hay and grain as of the time defendant took possession of the ranch in March, 1924, but none as to its value at the expiration of the lease three years later when the place was turned back to the plaintiff. When the plaintiff rested his case, counsel for the defendant moved for a nonsuit, on the ground that plaintiff had failed to prove his case as alleged, which motion was sustained, and judgment was entered for the defendant. Plaintiff has appealed.

1. We think the judgment should be reversed. It is the policy of the courts, so far as possible, where no injury results to ignore technicalities in pleading. Such has long been the policy of this court, as was manifested in Burgess v. Helm, 24 Nev. 242, 51 P. 1025, which has been consistently adhered to.

2. In the instant case plaintiff sued both on quantum meruit and on quantum valebat. Plaintiff might have alleged a breach of contract and sued for damages, but the measure of his damages would be the value of the hay and grain which defendant should have returned at the time he surrendered the ranch to the plaintiff under the terms of the lease. The measure of his recovery on the quantum valebat was the same. The purpose of all pleading is to apprise the opposite party of the nature of the case against him. In view of the situation we do not think there was such a variance as justified the nonsuit, since the defendant could not have been misled to his detriment. Though there was no proof of what the value of the hay and grain was when the ranch was returned to the plaintiff, it as least had a nominal value.

As said in 13 C.J. 244, 245, dealing with the subject of implied contracts:

"They rest solely on a legal fiction, and are not contract obligations at all in the true sense, for there is no agreement; but they are clothed with the semblance of contract for the purpose of the remedy, and the obligation arises not from consent, as in the case of true contracts, but from the law or natural equity. * * * Among the instances of quasi or constructive contracts may be mentioned cases in which one person has received money which another person ought to have received, * * *; cases in which a person fails to deliver specific property and becomes liable for the money value thereof. * * *"

The instant case falls squarely within the last-mentioned class.

For reasons given, the judgment is reversed.

ON PETITION FOR REHEARING January 17, 1929.