Lazarus v. Friedrichs

Citations

• 117 La. 711
• 42 So. 230
• 1906 La. LEXIS 756

Syllabus

<p>1. Appeal — Review — Sufficiency oe Evidence.</p> <p>The burden of proof was on plaintiff to make out his case with a reasonable degree of certainty. His testimony as to the alleged verbal' contract caunot be held to preponderate against the testimony of the defendant and another interested witness, especially when neither of them was impeached, and the trial judge seems to have given equal credit to all three of the witnesses.</p> <p>2. Judgment — Conformity to Pleadings.</p> <p>Where the pleadings and the evidence show that a certain verbal contract was either for a contingent fee or for promoting the organization of a Jockey Club, a judgment based,on both theories is clearly inadmissible.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 30, Judgment, §§ 34 — 37.]</p> <p>3. Same.</p> <p>A plaintiff cannot recover on a cause of action not only not alleged, but destructive of his judicial allegations and evidence in the particular suit.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. .vol. 30, Judgment, §§ 3A-37.]</p> <p>Breaux, C. J., and Nicholls, J., dissenting.</p> <p>(Syllabus by the Court.)</p>