R & K Corp. v. Kenmont Hat Co.

Bergan, J. (dissenting).

The complaint fails to state any actionable cause of any kind. Although in the course of trial the plaintiff proceeded on theories which differed widely from those pleaded, arising from the proof as it developed, the complaint itself is suggestive of the marked infirmities of the grounds for relief upon which plaintiff relies to sustain this judgment, and the pleading ought to be examined as part of the frame in which this litigation is cast.

The nature of the contract as pleaded is that the plaintiff, B & K Corporation, the defendant, Kenmont Hat Co., Inc., and Sidney…