Donnell v. Talley

If the judgment challenged by this appeal is based exclusively, or to any material extent, upon a cause of action not pleaded by either party, a fundamental error is shown. In my opinion, a proper interpretation of the record shows that the cause of action, to which the special verdict of the jury had reference, was one for an accounting. This view accords, as I understand it, with the majority opinion. We differ in the view that no cause of action in favor of plaintiff against the defendants for an accounting was alleged. That difference of opinion results, of course, in a corresponding…