251 P. 529 | Colo. | 1926
THE school district, a quasi municipal corporation, in its complaint against its former secretary and board member alleges that, by his deceit and various fraudulent acts and representations, the secretary caused and induced the school district to give, and he received, of its monies, through six of its warrants to himself for salary which he cashed, the total amount of $180, judgment for which amount is prayed. On issues of fact *317 joined, a jury being waived, trial was to the court. At the close of plaintiff's evidence the defendant's motion for a nonsuit was sustained by the court and the action was dismissed.
We cannot interfere with the court's action. We have read the evidence and agree with the trial court that there was no evidence at all of the fraud and deceit alleged. But counsel for the district here suggest, as they did below, that the pleaded cause of action, fraud and deceit, should be disregarded, and that the cause of action should be treated as one of mutual mistake or misadvertence. When this suggestion was made below there was no request by the plaintiff for leave to amend its complaint, or to file an amended complaint asking relief on the ground that these warrants were issued by mutual mistake of the parties. It is familiar learning that, as a general proposition, a plaintiff must recover, if at all, on his own statement of his cause of action. When the trial court here said, in passing upon the motion for nonsuit, that the fraud and deceit were not established, plaintiff did not ask leave to amend its complaint to correspond to the evidence which it claimed was sufficient to prove a mutual mistake. But if the plaintiff had made the request, the court could not properly allow such a change to be made and this is so for two reasons. There is no evidence of a mutual mistake or misadvertence. Besides, it is not permissible, over defendant's objection, for a court to permit a complaint to be amended by substituting for a cause of action therein set up, an entirely different cause of action. This court has too often established this rule now to restate the reasons for it. Among other authorities, see: Anderson v. Groesbeck,
The judgment must be affirmed. This affirmance, however, is without prejudice to the right of the plaintiff, if it sees fit to do so, to institute another action, as it may be advised, on the ground of mutual mistake.
MR. JUSTICE BURKE sitting for MR. CHIEF JUSTICE ALLEN and MR. JUSTICE SHEAFOR concur.
