56 N.W. 463
Minn.
1893
Buck, J.

This action was brought in the district court of St. Louis county to recover damages ‍​​‌​‌‌​‌‌‌‌‌‌​‌‌​‌​​‌‌​​​​‌​​​‌​​‌​‌‌​‌​‌​​‌‌​​‌‍for alleged breach of a contract entered into between the parties May 2, 1891.

*56One of tbe allеged causes of action is for money expended and labor performed pursuant to tbe terms of a written contract, wbicb is made a part of tbe complaint. It is concеded by tbe counsel for tbe appellant that tbis court cannot disturb tbe judgment of tbe court bеlow, to tbe amount of $1,157.38, rendered for sucb money expended and labor performed by plaintiff for tbe defendant by virtue of tbe terms of tbeir contract. But tbe plaintiff seeks to recоver as damages a large sum, in tbe nature of anticipated profits, ‍​​‌​‌‌​‌‌‌‌‌‌​‌‌​‌​​‌‌​​​​‌​​​‌​​‌​‌‌​‌​‌​​‌‌​​‌‍for nonperformаnce by tbe defendant of tbe terms of said contract, and did so recover in tbe court bеlow; tbe total judgment there rendered upon both of tbe alleged causes of actiоn being tbe sum of damages, $7,045.38, and costs taxed $16.80; total judgment, $7,-002.18, — of wbicb amount, $1,157.38 was for money expеnded and labor performed. Tbe controversy is over tbe damages claimed for antiсipated profits. Tbe court below allowed tbis claim, and tbe amount so allowed forms a part of tbe judgment above described.

Tbe appellant insists tbat tbis was error, upon tbe grоund tbat such damages were too remote, speculative, and uncertain, and did not cоnstitute tbe basis of a legal claim, and tbat, by tbe very terms of tbe contract, no sucb damages were contemplated by tbe parties at tbe time of its execution. In tbis view of tbe cаse, we agree with tbe appellant. It did not answer or appear in tbe court below, and contest tbe allegations of tbe complaint, nor was it bound to do so. It bad a right to rely upon ‍​​‌​‌‌​‌‌‌‌‌‌​‌‌​‌​​‌‌​​​​‌​​​‌​​‌​‌‌​‌​‌​​‌‌​​‌‍tbe protection of tbe court below, to tbe extent tbat sucb court would not rеnder a judgment against defendant upon insufficient averments or immaterial allegations in tbe сomplaint. Tbe law does not permit immaterial allegations in a complaint to be used as a basis for rendering a judgment against the defendant. Tbe allegation of material facts, or tbe omission of them, in a complaint, constitutes a guide for tbe defendant, in determining whether be will answer, appear, or suffer default.

If there is no answer or appearance, then there are no issues to be tried, and tbe court simply bears tbe evidence upоn tbe proper allegations in tbe complaint, where application is necessary, as in this case. But tbe defendant makes no ‍​​‌​‌‌​‌‌‌‌‌‌​‌‌​‌​​‌‌​​​​‌​​​‌​​‌​‌‌​‌​‌​​‌‌​​‌‍admission, by suffering default, as against insufficient allegations in tbe plaintiff’s complaint. It is tbe duty of tbe court bearing tbe evidence, in sucb cases of default, to receive only sucb testimony as conforms to tbe material *57allegations оf the complaint. In this respect tbe court below erred. We do not think that we need to enter into an extended discussion of the question of remote or speculative damages, ‍​​‌​‌‌​‌‌‌‌‌‌​‌‌​‌​​‌‌​​​​‌​​​‌​​‌​‌‌​‌​‌​​‌‌​​‌‍or those based upon anticipated profit, for the contract between the рarties clearly shows that no such damages were contemplated by the parties at the time of its execution.

(Opinion published 56 N. W. Rep. 463.)

As the contract was made a part of the complaint, its tеrms would control any inconsistent allegations inserted in the complaint by the plaintiff; and it aрpears from the express terms in the contract that defendant only agreed to take such amount of barrels manufactured by plaintiff as defendant needed for its use in its flour mill. The cаpacity of the flour mill is not stated or agreed upon by the terms of the contract. In the absence of any such agreement, the defendant had the right to judge of the number of barrels it nеeded for its use, and not the plaintiff. That the defendant did not receive or pay for any barrels under the terms of the contract is conceded, but, that plaintiff did not realize any anticipated profits thereby, does not constitute a right on the part of this plaintiff to recоver damages of the defendant. By reason of the error of the court below in this respеct, the judgment of the district court must be modified, and allowed to stand only for the sum of $1,157.38, and the taxed costs of that court.

This case is remanded to the court below, and said court is directed to modify said judgment in accordance with the views herein expressed.

Note. Appellаnt’s costs in this court having been taxed, it was on November 9, 1893, ordered, on the respondent’s motion, that appellant’s judgment for costs be set off against an equal amount of the respondent’s recovery of damages.