I NOTES 167 plaintiff did not have a right to recover the amount awarded him in the judgment — the defendant in his answer had expressly admitted that the plaintiff had a right to recover such an amount — but because in his complaint he had proceeded on the theory of a partnership and his complaint was in the nature of a bill in equity, whereas the judgment was based upon a contract and was in the nature of a judgment at law. The language of the court might have appealed to a special pleader of the seventeenth century. The court says: "The inherent and fundamental difference between actions at law and suits in equity cannot be ignored. As has often been said: 'Plead- ings and a distinct issue are essential to every system of jurisprudence, and there can be no orderly administration of justice without them. K a party can allege one cause of action and then recover upon another, his complaint would serve no usefid purpose.' And further: 'The rule that judgment should be rendered in conformity with the allegations and proofs of the parties, secundum allegata et probata, is fundamental in the administration of justice. Any substantial departure from this rule is sure to produce surprise, confusion, and injustice.' " This is a striking example of the technical doctrines governing plead- ings at common law ,2 and an illustration of the miscarriages of justice which the codes were intended to prevent.^ The only real difficulty in the case would be that there was no trial by jury. But a perfect answer is that, owing to the defendant's admission that he had made a con- tract with the plaintiff and had broken it, there was no question on this point for the jury to try.'* There has been a similar difficulty in New York in abolishing the forms of action in actions at law. In an earlier New York case* the plaintiff alleged that the defendant had by fraud induced the plaintiff to enter into a contract with him, and that the defendant had broken the contract. The defendant denied the fraud but did not deny the making and breaking of the contract. The court refused to give judgment for the plaintiff on the contract because his complaint was based on the theory of fraud and not of contract.^ In a somewhat similar case ^ there is a striking dissenting opinion by Peckham, J,, who expressed himself in the following plain and convincing words: "The merits of the cause have been fully tried, without surprise to either party. . . . The defendant understood the complaint; no pre- ^ Cf. Marsh v. Bulteel, 5 B. & Aid. 507 (1822), in which the plaintiff who declared on one breach of contract was not allowed to recover on another which was expressly admitted by the defendant in his plea. ^ See N. Y. Code Civ. Proc, § 3339, abolishing the distinction between actions at law and suits in equity, and the forms of those actions and suits; and § 723, provid- ing for the hberal allowance of amendments, and providing that in every stage of the action the court must disregard an error or defect in the pleadings or other proceed- ings, which does not affect the substantial rights of the adverse party.
- See 31 Harv. L. Rev. 669, 675-678.
" Barnes v. Quigley, 59 N. Y. 265 (1874). But see Connor v. Philo, 117 N. Y. App. Div. 349, 102 N. Y. S. 427 (1907). • For another recent case committing New York to the reactionary view, see Wal- rath V. Hanover Fire Ins. Co., 216 N. Y. 220 (1915). Indiana cHngs to the same view. See City of Union City v. Murphy, 176 Ind. 597, 96 N. E. 584 (1911). ' Degraw v. Elmore, 50 N. Y. i (1872).
