St. George v. Boucher , 84 Mont. 158 ( 1929 )

I dissent. That the plaintiff deemed the allegation of her amended complaint to the effect that at the time of the alleged oral agreement by reason of which she entered into possession of the property as the defendant's tenant, it "had previously been, and then was a house of ill fame," material to a statement of her cause of action, is made most apparent by the record. In her original complaint filed she alleged that the house in question "had by defendant been previously rented forimmoral purposes." This allegation was on the defendant's motion stricken, and thereupon in substitution, by interlineation, she made such allegation more emphatic and placed upon herself a greater burden of proof by stating that the house "hadpreviously been, and then was a house of ill fame." After a motion to strike such amendment was by the court denied, the amended complaint was filed, evidencing a determination on her part to prove such fact as a basis of consideration for the alleged contract. With full knowledge of all of the facts, and objection raised to such allegation, she not only reiterated it, but stood upon it as the foundation of her alledged right of recovery. While it is true, as stated in the majority opinion, the pleader might have alleged to better purpose that the plaintiff for the consideration alleged undertook "to build up agood reputation for the place, which had previously been a houseof ill fame and still bore a bad reputation," yet such was not the statement she elected to make as to her cause of action against the defendant. Manifestly, either allegation would have stated a good cause of action, ultimately showing the consideration for the agreement and the plaintiff's right to recover; yet when she pleaded her case as she understood it, it was incumbent upon her to prove it; and the mere fact that upon other and wholly different allegations of fact she would have been entitled to recover, does not excuse her from proving her case in accordance with the material facts alleged and upon which she predicates her right of recovery. This seems to me but the application of most fundamental principles. The utter failure to prove that the house "had previously been, and then was a houseof ill fame," affected the very root of the plaintiff's right of recovery, and the absence of proof of such a material allegation does not warrant this court in deciding that the complaint may be considered as amended to conform to the facts actually proven.

An agreement to clean up and give a good reputation to a building owned by the defendant, which had theretofore been and then was by him rented as a bawdy-house, as the consideration for the alleged contract, is wholly at variance with proof that the premises were at the time occupied as a rooming-house by miners, there being no women in the place, and that about eight years prior thereto, and before the defendant owned it, it had been a house of ill fame, and consequently previously had a bad reputation. Her task in building up a notorious whore-house to high social standard, would be infinitely greater than had the building theretofore been rented and used as a monastery. According to the allegations of her amended complaint, the existing character of the place, and the use to which it was then devoted, are most material elements of the consideration the defendant is alleged to have agreed to pay.

The rule for which I contend is given recognition by the majority, as it is said that "it does not need any argument to demonstrate that the consideration for the promise to pay $1,500 is based upon the reputation of the place," and "that the pleader deemed each of these allegations material seems clear." It is elementary that the proof must correspond with the material allegations of the complaint. The plaintiff must recover, if at all, upon the case made by the pleadings, and not upon a case developed by the evidence on the trial. (Gregory v. Chicago,M. St. Paul Ry. Co., 42 Mont. 551, 113 P. 1123; Bancroft's Code Pleadings, sec. 700.)

"This is a law case, and hence, unless the evidence supports the allegations of the complaint, the verdict cannot be sustained, although there might be evidence supporting the findings in plaintiff's favor if the allegations of the complaint had been different." (Verdi v. Helper State Bank,57 Utah, 502, 15 A.L.R. 641, 196 P. 225.)

The averments made by the plaintiff in her complaint were before the jury, and such scandalous matter in the pleading, made to appear as a part of the consideration for the alleged contract, without proof to support it, was highly prejudicial to the defendant in view of the sharp conflict in the evidence as to whether a contract was ever in fact made between the parties of the character upon which the plaintiff bases her right of recovery. The plaintiff should not in justice be permitted to make such a charge without the responsibility of proving it. It is noteworthy that the plaintiff occupied the premises continuously for a period of twenty-two months and until the very end of her tenancy, during which time she paid rent without deduction on account of her alleged contract with defendant upon which she predicates her right of recovery. If the place was in fact a whore-house when the plaintiff entered upon the contract, the consideration for the agreement would appear to be more reasonable. The effect of the judgment is to permit recovery on a contract not established by the proof. It is my opinion that the court erred in not granting the defendant's motion for a nonsuit.

Rehearing denied February 25, 1929.