Opinion
November Term, 1902.
J.C. Tallmadge, for the appellant.
A.D. Wales, for the respondent.
Upon this appeal this complaint is not challenged as not stating a cause of action. The criticism is that it does not state the cause of action upon which judgment has been rendered. Objection was duly made during the course of the trial that the cause of action sought to be proven was not the cause of action alleged in the complaint, and to the decision of the court, overruling this objection, exception was duly taken. Plaintiff has, without doubt, recovered upon a cause of action not alleged in her complaint as against the objection and exception of the defendant, made in due form and in due time. The judgment cannot stand for a moment unless the defendant has in some way waived rights which are ordinarily accorded to a party in an action by the rules of pleading. After issue was joined, however, upon the pleadings, the parties entered into a stipulation of reference. This stipulation did not refer the issues in the action, but referred to the referee specific questions: First, the said referee was to take and report to the court the testimony which might be produced by either party as to the interest of Hiram Lake and the interest of the defendant in the alleged partnership. It was further provided by said stipulation that the defendant was to render to said referee a full account of his proceedings as surviving partner of Hiram Lake. Whatever, therefore, may have been the allegations of the complaint in the action, the issues were framed by the parties themselves by this stipulation. The issues formed by the pleadings were discarded, and the issues stipulated were substituted therefor. The evidence was taken upon the reference and the decision made squarely upon the issues named in the stipulation. It, therefore, does not lie with the defendant to complain that the court has disregarded the issues formed by the pleadings, which issues he himself has disregarded and supplanted by other issues stipulated. It is true that this stipulation reserved the right for the defendant to move to dismiss the complaint. But that motion was to be made upon the ground that the complaint did not allege facts sufficient to constitute a cause of action. The right to move to dismiss upon the ground that the action proved did not conform to the pleadings was not reserved. It is apparent that the reservation of this right to move to dismiss the complaint upon the ground stated was for the purpose of fastening the costs upon the plaintiff. This is evident from the provision in the stipulation that the motion might be made before the referee to be determined upon the coming in of the reference. Upon the coming in of the reference a motion was made to dismiss the complaint upon the ground that the complaint did not state facts sufficient to constitute a cause of action, and this motion was denied. The argument of the appellant upon this appeal seems to concede that a cause of action at law is well stated, and his motion to dismiss upon that ground was, therefore, properly denied.
The conclusion of the trial court is also challenged as against the weight of evidence. We have carefully examined the evidence and find abundant support for the conclusion reached. The questions were purely questions of fact decided upon conflicting evidence, and it cannot be said that the evidence so preponderates against the conclusion reached as to authorize a reversal as against the weight of evidence. We perhaps would have been better satisfied if compensation had been allowed for the defendant's time and disbursements, but the proof to establish what time and disbursements were given by him to the business is vague and somewhat contradictory. We do not feel authorized to disturb the conclusion of the court below, that provision for defendant's compensation was not contemplated in the partnership agreement.
The claim of the appellant that the action was prematurely brought, if otherwise good, is waived by the stipulation of reference.
We have examined the other objections urged against the judgment and see no sufficient reason for reversal. The judgment should, therefore, be affirmed.
Judgment unanimously affirmed, with costs.