#### Johnson vs. Filkington.

CONTRACT. *(1) Revocation of order for work and materials. Presumption.*

Evidence: *(2) Properly rejected tohere it does not tend to prove the cause of action alleged.*

Amendment of Complaint. *(3) Not'admissible to substitute new cause of action.*

1. An order for materials and work may be revoked at any *time*before acceptance; and where a revocation is shown, it will be *presumed*to have been in time, until tbe contrary appears.

2. Evidence is inadmissible which does not tend to prove *the cause of action alleged.*

3. In an action to enforce an alleged lien on defendant’s house for work done and materials furnished under contract, there was no error in refusing *63plaintiff leave, at the trial, to *substitute a new cause of action,*by amending the complaint so as to allege damages accruing to him from defendant’s refusal to permit him to perform the contract.

APPEAL from tbe Circuit Court for *Mikocmlcee*County.

Action for materials alleged to have been furnished and labor performed to tbe value of $26.60, pursuant to a contract, in tbe construction of a dwelling bouse for tbe plaintiff, viz., in erecting on said dwelling bouse a lightning rod. Tbe complaint sets forth a petition for a lien on said dwelling bouse, etc., to tbe amount of said demand, alleged to have been filed in tbe proper clerk’s office within tbe time prescribed by statute; and it demands judgment in tbe form usual in actions to enforce such liens. Tbe answer was, in substance, that defendant bad revoked tbe order for said rod after it was given, and that tbe rod was afterwards erected without bis knowledge or consent, and plaintiff bad refused to remove it at bis request.

On tbe trial, plaintiff testified that be made a contract with defendant for tbe erection of a lightning rod on the bouse of tbe latter, about July 21, 1873, which was reduced to writing at the time; and be produced in evidence defendant’s written order for tbe rod, of tbe date just stated. lie further testified that be put up tbe rod two or three weeks after tbe order was given; that it still remained upon tbe bouse; that defendant, though several times requested, bad never paid for it; and that before tbe rod was erected, be (plaintiff) bad received from defendant a letter which in terms countermanded tbe order. Tbe petition for a lien set out in tbe complaint was read in evidence; but tbe court held (for reasons which need not be stated here) that it was insufficient to establish a lien. Plaintiff also testified that some time after tbe erection of tbe rod, defendant promised to pay for it. Defendant testified, in substance, that bo refused to pay for tbe rod, or make a promise of payment, and requested plaintiff to take it away. Plaintiff asked leave to amend tbe complaint so as to allege *64therein that if, upon defendant’s countermanding his order, plaintiff had desisted from the performance of the contract on his part, he -would have suffered damage to the amount of. $26.60. The amendment was refused, as was also plaintiff’s offer to prove the fact so proposed to he alleged.

The court instructed the jury that after defendant’s countermand of his order, plaintiff could not put up the rod and claim pay for it unless there had been a new arrangement between the parties; and it submitted to them the question whether defendant afterwards promised to pay for the rod. Yerdict for the defendant; new trial denied; and appeal by the plaintiff from a judgment on the verdict. '

The case was submitted by both sides on briefs.

*McMullen c& Houts,*for appellant,

argued, *inter alia,*that, to make a good defense, it should have been alleged and shown that defendant’s countermand was given before plaintiff had been to any expense and trouble on account of the order; and that, plaintiff having offered to prove affirmatively the loss and damage in case he had desisted from erecting the rod, the evidence should have been admitted even under the original complaint *(Ganson v. Madigan,*9 Wis., 146; 13 id., 67; and 15 id., 144); and that at least the court should have permitted the amendment, and then admitted the evidence. *Bonner v. 'Home Ins. Co.,*13 Wis., 677; *Gardiner v. Kellogg,*14 id., 605; *Wood v. Schettler,*23 id., 501; *Banley v. Williams,*16 id., 581; *Pellage v. Pellage,*32 id., 136; *Giffert v.West,*33 id., 617; *Matteson v. Ellsworth,*id., 488; *Smith v. Schulen-berg,*34 id., 41; *Pierce v. Carey,*37 id., 232; *Masterton v. Mayor, etc.,*7 ITill, 61; *Clark v. Marsiglia,*1 Denio, 317; Judge Dixon’s note, 5 Wis., 627. 2. If plaintiff had been permitted to show his damages as proposed, he could have enforced a lien upon the premises for the amount of such damages, if his petition was sufficient. Phillips’ Mechanics’ Liens, §§ 139, 149, and note; *Banla of Pa. v. Gries,*35 Pa¡ St., 423; *Morrison v. Hmicocla,*40 Mo., 561; *Beckel v. Petticrew,*6 *65Ohio St., 247. Counsel also argued at length the sufficiency of plaintiffs’s petition for a lien.

*Rogers <& Hover,*for respondent,

contended that after defendant had countermanded his order, plaintiff’s only remedy ■was hy an action for damages for breach of the contract *(Claris v.*Marsiglia, 1 Denio, 317), and for such damages he would have no lien; and that the proposed amendment, proposing to substitute a new cause of action, was properly denied. 12 Wis., 378; 19 id., 82; 23 id., 199.

Cole, J.

It seems to us the question whether the petition offered in evidence was sufficient to establish a lien, or not, becomes immaterial in view of the verdict and of the undisputed facts in the case. The jury found, under the direction of the court, that the defendant neither accepted the rod after it was put up on the house, nor made any promise to pay for it. ISTo lien could, therefore, be claimed on the ground that the defendant had accepted the rod and had agreed to pay for it. The court also instructed the jury, in substance, that it was an admitted fact in the case that the defendant sent the plaintiff a written countermand of the order for the rod before the same was put up on the house, and that after this countermand the plaintiff had no right to proceed and put up the rod and claim pay for it. That such a written revocation was sent and received, there can be no doubt, because the plaintiff himself admits it in his testimony given on the trial. The question then arises as to what were the rights of the parties after the revocation of the order.

There can be no doubt about the right of the defendant to withdraw his order for the rod at any time before it was accepted by the plaintiff. Eor, until acceded.to, it was a mere offer or proposal, liable to be retracted; and an acceptance, even, subsequent to the retraction, would be of no avail. *M. E. Church of Sun Prairie v. Sherman,*36 Wis., 404; Metcalf on Contracts, p. 15. It does not appear that the *66plaintiff bad accepted tbe order before it was countermanded; and in tbe Sbernxan case above cited it was beld that tbe presumption would be that tbe revocation was in time, until tbe contrary appeared. Tbe order of July 21, 1871, was sent to tbe plaintiff, as we understand tbe testimony, and was not taken by an agent of bis. Tbe parties lived some little distance from eacb other, and it does not appear bow that order was sent, whether by mail or otherwise. But it is a significant fact that tbe plaintiff, though sworn on bis own behalf, did not state that be bad received and accepted tbe order before it was revoked. Under this state of tbe proof, we see no objection to tbe direction of tbe court given tbe jury to find that tbe order for tbe rod was countermanded, and that the plaintiff, after that, bad no right to proceed and perform tbe work as though tbe order were in force. For certainly tbe revocation of tbe order before tbe rod was put up, was not a fact left in dispute by the evidence.

Another exception relied on for a reversal of tbe judgment was tbe exclusion of certain evidence offered on tbe part of tbe plaintiff. The plaintiff offered evidence to prove tbe loss or damage be would liave sustained if, after receiving tbe order, be bad, upon its revocation, desisted from doing tbe work in accordance with the order. This evidence was objected to, and ruled out. That tbe evidence was inadmissible, as in no way tending to prove tbe cause of action set forth in tbe complaint, is a proposition too plain for argument. Says Prof. (Freenleaf: “It is an established rule, which we state as tbe *first rule*governing in tbe jnoduction of evidence, that tbe evidence offered must correspond with tbe allegations, and be confined to tbe pioint in issue.” 1 Greenl. Ev., § 51. Within this fundamental rule, tbe evidence was properly excluded. But tbe plaintiff, in connection with this evidence offered, asked leave to amend bis complaint by alleging that if, upon tbe order being countermanded, be bad desisted from putting up tbe lightning rod, *67he -would have suffered loss and damage to the amount which he claimed to recover in the action. This amendment was objected to by the defendant, and the court refused to allow the amendment to be made. This ruling is relied upon as error.

It is very obvious that the proposed amendment entirely changed the cause of action stated in the complaint. The plaintiff in substance claimed to have performed work and furnished certain materials, namely, a lightning rod, in and about the construction of a dwelling house for the defendant, and that this was in pursuance of a contract entered into between the parties. And he asked that the value of the work done and materials furnished' should be adjudged a lien upon the premises. Failing to establish this cause of action, because it appeared that the defendant had revoked the order for the work and materials, the plaintiff, by the amendment, sought to convert the action into one for damages for a breach of the contract. The amendment presupposes that the order had been accepted so that it was binding upon the parties. Now if the defendant undertook to revoke the order after it had been accepted, and refused to let the plaintiff put up the rod, he might have been liable to pay such damages as the plaintiff had sustained by this violation of the contract. But that is a cause of action quite different from the one stated in the complaint. One arises out of the performance of a valid contract; the other is for a refusal to permit the plaintiff to perform the contract. It is therefore apparent that by the amendment the plaintiff sought to substitute this cause of action for a breach of the contract for the one originally counted upon in the complaint. *“*This is not amendment, but substitution.” ’We know of no case which has come before this court, where the power of amendment has been carried to the extent of allowing one cause of action to be substituted for another. And the refusal of the court to allow the proposed amendment, we think, was correct.

*68This disposes of all the material points'in the case.

*By the Oowrt.*— The judgment of the circuit court is affirmed.