58 Ill. 52 | Ill. | 1871
delivered the opinion of the Court:
This Was a proceeding to enforce a mechanic’s lien. The ■allegation in the petition is, that the materials were furnished on an implied contract to pay for them on delivery.
The petitioner, Onstott, was sworn as the witness to prove his case, and he testified to an express contract to the effect, that Randolph was to pay him for the materials, §50 in cash, and the balance in thirty days.
It is the settled doctrine of this court, that a party can not make one case by his pleading, and another and different case by his proofs. McKay v. Bissett et al. 5 Gilm. 499; Morgan v. Smith et al. 11 Ill. 194; Rowan v. Bowles et al. 21 ib. 17; Burger v. Potter, 32 ib. 66.
The case of Bush et al. v. Connelly et al. 33 ib. 447, was an action to enforce a mechanic’s lien, and this court said, when it was alleged in the bill that the work was to be paid for when fully completed, and the proof was that it was to be paid .for by a stipulated time, no recovery could be had, by reason of the variance.
There is no point made on the fact that the decree is also against Walker, the owner of the lot. The error allowed, however, reverses the entire decree* and he can not be injured.
The decree must be reversed.
Decree reversed