I am satisfied that the defendant by his answer did not put in issue any of the substantial allegations of the complaint with respect to the contract, and that the plaintiff would have been entitled to judgment upon the pleadings if he had insisted upon it: But as he saw fit to make proof, and made no objection to the offer of proof by the defendant to disprove the allegations of the complaint, he must be deemed I think to have consented- that the pleadings should be abandoned, and the case might be tried upon the merits without regard to the technical issues thus framed. When he did *117that he abandoned the advantage which he had obtained by the condition of the pleadings, and he could not expect to recover unless he made the proof which would have been required if his allegations had been put in issue. The contract that he proved was made with the committee on distribution. Having proved that contract and relied upon it, he could not, I think, recover unless he proved in some way that he had acquired title from the person or persons with whom the defendant contracted. That he failed to do. For that reason I think the judgment was correct and -should be affirmed. I put my concurrence solely upon that ground and upon no other.
Judgment affirmed, with costs.