#### Bean, by guardian *ad*litem, Respondent, vs. Percival Copper Mining Company, Appellant.

*September*27

*October 15, 1901.*

*Contracts: Pleading: Variance.*

In an action to recover for personal services alleged to have been performed *for*defendant, at its special instance and request, at an agreed price per day, plaintiff offered in evidence a contract by which third persons agreed to do certain work for defendant and “the latter agreed to pay all laborers employed by them. *Held,*that it was error to admit such evidence without amdndmént of the complaint and giving defendant an opportunity to say whether it was prepared to go on with the trial under the changed conditions.

Appeal from a judgment of the circuit court for Douglas county: A. J. Yinje, Circuit Judge.

*Beversed.*

The plaintiff brought this action to recover for personal services, alleging that between September 1, 1899, and January 1, 1900, he performed work, labor, and services for the defendant, at its special instance and request, for a period of eighty-one ánd one-half days, at the agreed wages of $2 per day. The defendant answered, alleging that the services mentioned were performed for Erank E. Bean, A. L. McDonald, Fred W. Bean,,and Harry M. Bean, and that long prior to the commencement of this suit said parties had *599paid him in full. The proof fails to show that plaintiff had any contract with defendant, or that he performed any work for them. To support his cause of action, the plaintiff introduced in evidence a written contract between the defendant and the parties above named, in which the latter agreed to sink a shaft on premises described, of certain .designated dimensions and depth, to be paid for at the rate of $18 per foot. In this contract was the following clause: “The first party to pay on the 15th of each month all laborers employed by the second parties for work done the previous month.” The defendant objected to the admission of the contract on the ground that it was not admissible under the pleadings, etc. The court overruled the objection. Other items o'f testimony tending to establish an entirely different cause of action than that sued upon were admitted over defendant’s objection. At the close of the testimony the defendant moved to strike out all of the testimony so objected to, and for a direction of a verdict for defendant on the ground of a failure of proof to establish the plaintiff’s cause of action. Both motions were denied, the court remarking that, if there was a variance of proof, the complaint would be deemed to be amended to correspond to the proof. Defendant duly excepted. The court instructed the jury that, if plaintiff was working for the parties named in the answer, and relied upon the promise made by defendant in the contract, the jury should find for the plaintiff for the number of days he worked after the contract went into effect. Defendant took due exception. The jury found for plaintiff. A motion for a new trial -was overruled, and judgment entered for plaintiff, from which defendant has appealed.

For the appellant there was a brief by *Arnold &*Arnold, and oral argument by *N. B. Arnold.*

For the respondent the cause was submitted on the brief of *W. P. Orawford.*

*600Bardeen, J.

The plaintiff sued on a cause of action for work, labor, and services performed for the defendant at an agreed price per day. He was allowed to prove an entirely different cause of action, against defendant’s constant objection. The contract offered in evidence was clearly inadmissible. It was distinctly error to admit it under the pleadings as they then stood. No doubt the court might have allowed an amendment of the complaint when the evidence was offered, and proceeded with the trial, if the defendant made no showing of surprise. No application for amendment was made, and, of course, no opportunity was given defendant to say whether it was prepared to continue the trial and to meet and combat the changed conditions. Indeed, not until the court charged the jury was the defendant really advised as to the position the court would take with reference to the defendant’s liability under the proof. It was not a mere question of variance of proof. It was the substitution of a new and different cause of action, based upon. a state of facts entirely different from those stated in the complaint. There was absolutely no proof to support-the allegations of the complaint. When the defendant was given to understand the real attitude of the court, it was too late to urge surprise, or to do anything except protest as it did. The rules of law governing such matters are plain and well settled, and we cannot sanction such am unwarranted departure therefrom.

*By the*Court.— The judgment is reversed, and the cause is remanded for a new trial.