Smith v. . Cook

The plaintiffs base their cause of action upon a specific contract specifically set out in the affidavit, which was treated as a complaint. Ordinarily, in the absence of a. request to amend a pleading to conform to the proof, a pai’ty is restricted to the cause of action alleged in the pleading. The contract of 8 June expressly provides that it was to cover only sucb lumber as was cut by tbe defendant, F. E. Oook, during the year 1927. There was no evidence on behalf of plaintiffs that the lumber seized by the sheriff was so cut during said period. Plaintiff, Smith, testified that he left…