Phebe B. Brown, Respondent, v. Henry J. Wolfe, Appellant

Phebe B. Brown, Respondent, v. Henry J. Wolfe, Appellant. Third Department, May 8, 1907. Trial — party alleging one canse of action not entitled to recover upon another—proof that goods alleged to be sold to defendant were sold to association of which he was member. z A party who has alleged one cause of action cannot recover upon another unless the parties have, by not objecting, or otherwise, consented to try questions outside the issue. Thus, when a complaint seeks to recover for material alleged to have been sold to the defendant and the proof shows that it was furnished to an unincorporated association of which the defendant was a member, there is a complete . failure to prove the cause of action alleged. Appeal by the defendant, Henry J. Wolfe, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Greene-on the 17th day of November, 1906, upon the verdict of a jury rendered by direction of the court after a trial at the Greene Trial Term. The complaint is in form for two causes of action in substance as follows: First. That one Hiram Brown sold and delivered to the defendant at the latter’s request certain lumber and building materials worth the sum of sixty-seven dollars and ninety-three cents, which sum the defendant promised and agreed to pay, but that no part thereof has been paid. Second. After repeating the facts stated for a first cause of action, that said Hiram Brown entered into an agreement with the defendant to build for him a barn, and to furnish the lumber and material therefor at an agreed price of $255, and that said Hiram Brown did build said barn and furnish the material therefor, all of which was worth said sum of $255, no part of which has been paid except the sum of $201.16. The plaintiff further alleged the death of Brown, leaving a last will and testament and the appointment of executors, who duly qualified, and assigned the causes of action alleged to one Baker, who in turn assigned the same to the plaintiff. The defense was a denial of the alleged sale and delivery and of the contract for the building of the barn and_ the furnishing of materials therefor. The court directed a verdict for the plaintiff for. the amount claimed, . $121.77, and from the judgment entered thereon the defendant has appealed. ■ . . F. H. Osborn, for the appellant. Alberti Balcer, for the respondent. [MAJORITY — Chester, J.:] Chester, J.: 'There is a complete failure of proof that the defendant purchased the building materials in question from Brown, and there was no " evidence that he ever entered into any agreement with Brown for the erection of a barn or the furnishing of materials therefor. On the trial the court allowed the plaintiff to show, under objections - and exceptions, that the barn in question was erected upon the ground of .the Coxsackie Driving Park Association, , which was an ■ unincorporated association of seven or more members, and that the defendant' at the time of such erection was a member thereof and also that the material mentioned in the complaint was furnished for such barn. There was' an attempt to show that these materials . were ordered by the defendant, but in that respect there was a failure of proof. There was evidence that at the time of the service of the summons-upon the defendant the latter was shown a statement of the account containing the-items of .the materials furnished for- ■ the erection of the barn in question upon the grounds of. the association' and that defendant said that the claim was all right, but that the claim was not against him,; that there were several.members of the association and that he was only one of-them; that he would pay the claim if he had to, but that lie would not if he :did not have to ; that, he did not think he should-pay any more than his proportionate share of it and that the lumber was purchased of Brown and used for the. association. It was-also shown that the defendant said to the plaintiff that the association owed the bill and ^ that plaintiff ought to have her pay, but that lie did not feel that - lie ought to pay it aloné. The assignment of the causes, of' action in question to the plaintiff showed'no claim Or account, against the - defendant, but did show an account against the association for' an amount somewhat in excess of'the amount sued for. These were received in evidence -against the defendant’s^ objection and exception, arid upon a like objection and exception the plaintiff was • allowed • to testify that the claim, against the association mentioned in- the assignments was the same claim set forth in the complaint. The defendant’s counsel at the close of plaintiff’s proof moved to strike out all the evidence relating to an indebtedness of the association on the ground that the same was incompetent and inadmissible under the complaint; the motion was denied and the defendant excepted. The defendant’s counsel then moved for a nonsuit on the grounds that the- evidence fails to establish either of the causes of action alleged in the complaintthat the defendant cannot be made liable in this .action as á member of the association for the reason that no allegation- of indebtedness by said association nor of liability on the part of the defendant as a member thereof appears by .the cómplaint, and the defendant has had no opportunity to traverse any such allegations'which are essential to-a cause of action against him as' ai member thereof. The motion was denied and the defendant excepted. The court thereupon directed a verdict for the plaintiff for the amount claimed in the complaint, arid the defendant . excépted. - It thus appears that the plaintiff has been allowed to recover for a cause, of action not pleaded upon evidence duly objected to as not - within the issues, tending to show a cause of action outside of the issues. The admission of this evidence and the direction .of a'verdict based thereon were errors requiring a reversal (Rich v. Wright, 57 App. Div. 236; Southwick v. First Nat. Bank of Memphis, 84 N. Y. 420 ; Romeyn v. Sickles, 108 id. 650); for a- party under. . our system of pleading cannot he allowed to allege one cause, of action and recover upon another, unless the parties have, by not objecting or otherwise, consented to try questions outside the issues.. . The-complaint here alleges an indebtedness of the . defendant alohex arid not a joint and several liability on liis partj and there is. nothing therein to indicate that the plaintiff would" seek to recover , upon an indebtedness created by an association of which the defendant was a member. The issue presented- by ■ the defendant’s denial of the facts stated in the complaint was the only one presented for trial, and on that issue the proof■ of the plaintiff entirely failed, and her complaint' should have been dismissed. - . The judgment should be reversed and a new trial granted, with costs to the defendant to abide the event. All concurred.. Judgment reversed and new trial granted, with costs to.appellant to abide event. .•