Easley v. Prewitt

37 Mo. 361

Opinion

Wagner, Judge,

delivered the opinion of the court.

The demurrer in this case was improperly sustained. A petition is not demurrable because it asks a judgment not warranted by the averments ; nor is its character always determined by the relief it prays for. The court may grant any relief consistent with the case made and embraced within the issues. (R. C. 1855, p. 1280, § 12; Northcraft v. Martin, 28 Mo. 469.) The petition stated a good cause of action on the agreement; but if the plaintiff wishes to foreclose his lien on the building, he ought to amend his petition,and set out the condition and the breach.

The judgment will be reversed and the cause remanded.

Judge Holmes concurs; Judge Lovelace absent.