Eason Ex Rel. Eason v. Dew

The facts agreed negative rather than support plaintiff’s allegations as to the existence of a contract between plaintiff and Dew. In this respect, there is a material variance between the allegation and proof. There can be no recovery except on the case made by the complaint. Andrews v. Bruton, 242 N.C. 93, 86 S.E. 2d 786; Manley v. News Co., 241 N.C. 455, 85 S.E. 2d 672.

Are the facts alleged sufficiently established by the facts agreed to warrant plaintiff’s recovery of $756.00 or any amount by reason of the provisions of G.S. 44-1 and G.S. 44-41? When litigants submit a cause on agreed…