Freas v. Custer

Appellant pleads error upon the overruling of his motion for a new trial, because the finding of the court is not sustained by sufficient evidence and is contrary to law. Appellant’s- proposition is that the evidence proved a cause of action not within the allegations of the complaint, in that the complaint is upon an implied contract, and the finding is upon evidence which proved an express oral contract; and makes the point that this evidence constitutes a variance from the complaint, which amounts to a failure of proof; and says that the rule secundum allegata et probata applies.

This suit…