Whiting v. Koepke

40 A. 1053, 71 Conn. 77, 1898 Conn. LEXIS 77

• Court: Supreme Court of Connecticut
• Decided: July 26, 1898
• Status: Published

Opinion

Andrews, C. J.

The only ground alleged in the complaint by reason of which the plaintiff sought to have his lien foreclosed, was that he had rendered services and furnished materials upon an agreement with the defendant that shé would pay for the same. That agreement is not proved. The plaintiff now claims that his lien may rightfully be foreclosed, because a consent by the defendant was found by the trial court. But that consent was not averred. That is to say, in brief, the ground of recovery averred is not proved; the ground of recovery found is not averred. When the facts upon which the court in any case founds its judgment are not averred in the pleadings, they cannot be made the basis, for a recovery. Atwood v. Welton, 57 Conn. 514. Under the Practice Act the right to recover rests upon and is. limited by the facts alleged in the complaint. Powers v. Mulvey, 51 Conn. 432, 433; Donovan v. Hartford Street Ry. Co., 65 id. 201, 213; Greenthal v. Lincoln, Seyms & Co., 67 id. 372; Moran v. Bentley, 69 id. 392; Shepard v. New Haven & N. Co., 45 id. 54.

There is error and the judgment is reversed.

In this opinion the other judges concurred.