86 Wash. 282 | Wash. | 1915
In April, 1914, there were two actions brought against defendants, one by one Monroe, and the present case, upon the same grounds, based upon representations of deceit and fraud on the part of F. E. Gordon, the husband, as an attorney at law, and of conspiracy between him and another attorney named Rankin, by which it was alleged the plaintiffs were deceived and defrauded into paying Gordon in each case a large sum of money, for the amount of which the several plaintiffs demanded damages. The allegations of deceit, fraud, and conspiracy in each cause were denied by the defendants by simple denial.
The Monroe case was brought on for trial before the superior court and a jury, and resulted in a disagreement of the jury. Afterwards it was reset for trial by a jury, and the present case was also then set for trial, to immediately follow the trial of the Monroe case. On the day appointed for trial of the Monroe case, the parties stipulated in open court, the court consenting, which stipulation was later reduced to writing and filed, whereby a jury was waived in both cases and both cases were submitted to the judge who presided at the trial of the Monroe case, for determination upon the evidence which had been presented in that case, and the issues presented by the pleadings in both cases.
During the trial of the Monroe case, the court permitted that plaintiff, over the objection of defendants, to introduce evidence of the transaction between this plaintiff and defendants, upon the principle that other similár transactions of a fraudulent character may be shown to establish fraud in the transaction in issue. After consideration of the cases for some time, the trial court found for the defendants upon all the issues in the Monroe case, and dismissed that action. As to the case in hand, he found and concluded that a different situation existed as to the transaction between the parties; that “the proof fails to sustain the allegation charging a conspiracy between Gordon and Rankin;” that respondent had employed appellant to represent him in a threatened suit
Both appellants and respondent excepted to the findings and conclusions made by the trial judge of his own motion, and moved for a new trial, the motions of both appellants and respondent being denied. All of the parties to the suit apparently relied upon the issues raised by their pleadings as to fraud and conspiracy. The appellants stood trial upon the issues tendered by the respondent in his complaint, and had no opportunity to defend any other stated cause of action. Under the stipulation between the parties, the hearing, both on the law and the facts, was necessarily limited to those issues. The rule that the allegata and probata should correspond prevails under the code as well as at common law. Marsh v. Wade, 1 Wash. 538, 20 Pac. 578.
Our code, Bem. & Bal., § 303, provides for liberality in the way of amendments to “correct mistakes of names of parties, or mistakes in any other respect, upon such terms as may be just,” with or without the consent of the adverse party; and in recent times the courts have avoided refined and tech
But our code, Hem. & BaL, § 301, further provided that:
“When, however, the allegation of the cause of action or defense to which the proof is directed is not proved, not in some particular or particulars only, but in its entire scope and meaning, it shall not be deemed a case of variance . . . but a failure of proof.”
Hence, we have recently held that:
“Where a complaint is founded on an express contract of sale and the evidence discloses an express contract of consignment, there is an entire failure of proof.” Hubenthal v. Creighton, 81 Wash. 688, 143 Pac. 98.
In Oldfield v. Angeles Brewing & Malting Co., 72 Wash. 168, 129 Pac. 1098, we said:
“No leave to amend was requested. No rule of construction, however liberal, can permit the trial of an issue not tendered in the complaint over the obj ection of the defendant. To permit such a course would be to ignore the statute, dispense with formal pleadings, and invite endless confusion.”
In this case, the respondent pleaded damages from deceit, fraud, and conspiracy, and the recovery was allowed, without amendment, on the ground of extortionate overcharging, on a sort of implied contract of the attorney to forbear or refund the sum not earned.
Reversed and remanded.
Mobris, C. J., Mount, Ellis, and Chadwick, JJ., concur.