72 Wash. 168 | Wash. | 1913
This action was before us on the same complaint .in Oldfield v. Angeles Brewing & Malting Co., 62 Wash. 260, 113 Pac. 630, Ann. Cas. 1912 C. 1050, 35 L. R. A. (N. S.) 426, to which reference is now made for a complete
A reading of the complaint and of the opinion on the former appeal makes it manifest that the respondent mistook the nature of his cause of action. He brought his action upon the lease for a recovery of the rent reserved from the time the building was tendered to the time of the commencement of the action amounting in all to $3,850. The prayer was for that amount, with interest from accrual upon the amount of each month’s rent going to make up the aggregate. His evident theory, and that of the trial court on the first trial, was that there would be a right of action for each month’s rent and that the failure to pay the rent would constitute successive breaches. There was, however, but one breach, and that was complete and final, going to the whole contract. It was made by the refusal to accept the building. In such a case, the cause of action is entire and the measure of damages is the loss suffered, namely, the difference between the entire rent reserved and the entire rental value for the term. It is obvious that the complaint, which did not tender as an issue that there was such a difference, did not allege any loss or damage, and hence did not state a cause of action.
After the former reversal, the action was noted by the respondent for a retrial in the superior court. The complaint was not amended in any particular. The cause was
The respondent contends that the issue tried was sufficiently defined by the opinion of this court on the former appeal. That opinion, however, did no more than declare as the law of the case that the action could not be maintained for rent, but for damages for breach of contract only, and defined the measure of damages in such an action. The complaint did not tender the issue tried, and we know of no rule of law permitting the opinion of the appellate court to be treated as a pleading. The statute, Bern. & Bal. Code, § 258, requires that the complaint contain a plain and concise statement of the facts constituting a cause of action, and a demand for the relief which the plaintiff claims. The com
It is familiar law that where a complaint sets forth facts entitling the plaintiff to some relief, such relief will not be denied merely because he has mistaken his remedial right, but such is not the case here. No facts showing damages in any sum or the right to any relief were pleaded. The only possible ground of relief was that the rent reserved exceeded the rental value. Neither this, nor any fact tending to show this, was alleged. There was no basis in the pleadings for the admission of any such proof.
It is urged that the complaint should be treated as amended to conform to the proof. This rule, however, has no application where the evidence has been introduced over objection and the issue tried was in no manner tendered in the complaint. The record is replete with objections pointing out the inadmissibility of the'evidence under the issue tendered. 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 objection of the defendant. To permit such a course would be to ignore the statute, dispense with formal pleadings, and invite endless confusion. The trial court should have directed that the complaint be amended to conform to our former ruling, on pain of dis7 missal.
We find no merit in the appellant’s contention that the action cannot be maintained without first securing leave to sue the receiver of the appellant, who was appointed subsequent to the commencement of the action.. Nor do we find
The cause of action being the same breach of contract, declared upon in the original complaint, there can be no question as to the right to amend so as to present issuable facts showing damage.
The judgment is reversed, and the cause is remanded with leave to the respondent to amend so as to present the real issue involved, and for retrial upon that issue.
Crow, C. J., Main, Morris, and Fullerton, JJ., concur.