Zeimet v. Phillips

Citations

• 8 S.D. 33
• 65 N.W. 418
• 1895 S.D. LEXIS 5

Syllabus

<p>The complaint alleged that defendants agreed to pay plaintiff the reasonable value of his services in quarrying stone. The evidence showed that what defendants agreed to pay was to be measured by amount due upon a contract for the stone, made with the proprietor of the quarry. Held, that plaintiff could not recover on the theory of his complaint, bat if, without objection, the case was being tried on the theory of the evidence it was error to exclude defendants’ evidence of what the contract was, and how much was due upon it.</p> <p>(Syllabus by the Court.</p>