McLachlan v. Gordon

Citations

• 86 Wash. 282
• 150 P. 441
• 1915 Wash. LEXIS 1317

Syllabus

<p>PLEADINGS'-VABIANCE-FAILURE OE PEOOE-ISSUES, TBIAL AND Judgment. In an action to recover money paid to an attorney through deceit and a conspiracy, submitted on the evidence taken in a similar case, it is error, upon finding that there was no deceit or fraud and that the issue presented by the complaint had not been proved, to give judgment for the plaintiff upon the theory of an excessive charge for services, paid by plaintiff when unduly prevailed upon; since an amendment without consent of either party, on failure of proof, is error, in view of Rem. & Bal. Code, § 301, providing that it shall not be deemed a variance, but a failure of proof, if the cause of action or defense is not proved in some particulars only, but in its entire scope and meaning.</p>