To my thinking, the judgment of the learned trial justice was right, for the defendant failed to prove performance of the contract she pleaded. The course of the trial moved the court to ask, “ Then you are. suing for breach of contract, are you ? ” That brought from the plaintiff’s counsel, “ You have the complaint before you,” and later, after being told it would do no harm to state and save time, “ I have forgotten myself; I have not read the complaint since the last trial.” So he stood by his pleading upon an express contract until he had rested and his opponent had moved and stated the reasons for dismissal. Then he said, “We are suing for work, labor, and services,” to which the court returned, “ But your complaint expresses your theory, and when I asked you * * * you stated that the complaint was before me.” The plaintiff may not be helped here by the admission in the answer, for it was part of an allegation asserting a different relation from that asserted in the complaint, and one may not avail of part of an allegation without adopting the whole.
Judgment reversed and new trial ordered, with costs to appellant to abide event; new trial should be had in another district.