Beard v. Yates

The cause of action set forth in the complaint is evidently one upon contract. It avers a grant of a privilege or easement of using all the water flowing from a mill-pond which is necessary to propel a grist-mill, covenants in respect thereto by the grantor, and breaches of such covenants by the defendant who acquired the title of the grantor in the mill-pond, and thus became bound to perform the covenants.

No one reading the complaint could reasonably infer that the pleader intended to set forth a cause of action arising out of a tortious violation of the rights of the plaintiff. It is true that, striking out the averment respecting the covenants, there would remain the allegation of the grant eto the plaintiff, and the same allegation which is set forth as a breach of the covenant, namely, that the defendant had obstructed the rights thereby granted. ^Bnt there is no allegation that the acts imputed to the defendant were wrongfully of intentionally done, or that he knew that they were not a proper exercise of his own right to take water from the pond^ We do not say that it is necessary in framing a complaint in an action of tort to use epithets; but when we are called upon to determine the real nature of a complaint, which the pleader contends sets forth a cause of action, as well in tort as in contract, the absence of them may well be regarded in construing the pleading. The only construction we can give the complaint is that it sets forth a cause of action upon contract and that it does not fairly set forth one in tort.

Upon the trial no covenants were proved, but the plaintiffs were permitted to recover upon the liability of the defendant at common law for a tortious injury of the plaintiff’s easement; and the defandant duly excepted. We think the ruling of the learned justice at the circuit was erroneous, for the reason that there was not a variance only within sections 169 and 170 of the Code, but a failure of proof according to section 171 of the Code. ' The cases of Walter v. Bennett 16 N. Y. 250; Lewis v. Mott, 36 id. 395; Degraw v. Elmore, 50 id. 1, seem to us to be decisive on this point. Nor are the cases of Connaugty v. Nichols, 42 N. Y. 83, and Ledwich v. McKim, 53 id. 307, in conflict with these cases. The principle deducible from all of them is that the presence of allegations in the complaint which are irrelevant to the case, really made thereby, will not have the effect to change the action from one upon contract to one in *79tort, or vice versa; but that the case really set forth by the plaintiff, in his complaint, cannot be changed upon the trial into one of a different nature. Such a principle is obviously necessary to the due administration of justice. While a party is not to be turned out of court because his pleading contains unnecessary averments when it does fairly apprise his adversary of the claim made against him, yet he is to be held to a trial of the cause of action actually set forth; and when a party sets forth a good cause of action upon contract, and avers and proves additional facts, which render the defendant liable for a tort arising from the same cause of action, there is, perhaps, no hardship in allowing a recovery upon the contract, for a plaintiff may in general waive a tort and sue in assumpsit, and the defendant cannot be prejudiced by a recovery in the milder form. But there would be manifest hardship in allowing a recovery fora tort in an action ex contractu, for the reason that such a recovery might subject the defendant toan imprisonment of his person. However that may be, we think the salutary rule that a plaintiff must recover, if at all, according to his allegations as well as his proofs has not been abolished by .the Code

For these reasons the judgment must be reversed and a new trial granted with costs to abide the event.

Judgment reversed and new trial ordered.