Miller v. King

The motion for a reargument in this case must be granted. The case was tried at the circuit solely upon the theory of a breach of contract. The court ruled that the ejectment of the plaintiff from the train was not unlawful. On appeal this court *426apparently overlooked that ruling, and sustained' the judgment on the ground that “the conductor had no right to eject the plaintiff, and that his act was unlawful.” The plaintiff should not be permitted to sustain his judgment on a different theory than that upon which it was recovered at the trial. Treating the action as one for breach of contract,…