Denied November 27, 1917.
On Petition for Beheaeing.
(168 Pac. 725.)
Petition for rehearing denied.
Mr. Charles J. Schnabel and Mr. J. B. Ofner, for the petition.
Mr. W. 7. Masters, contra.
Department 1.
Mr. Justice Burnettdelivered the opinion of the court.
An opinion written by Mr. Justice Benson reversed a judgment of the Circuit Court in favor of the defendant and she has filed a petition for rehearing which has had our attention.
We recall that the complaint was in the ordinary form to recover for money had and received to the use of the plaintiff.
The substance of the answer was that the defendant received the money as an initial payment on a contract whereby she agreed to convey to plaintiff some real *410property and furnish with it an abstract showing clear title on the vendor. She pleads that she supplied such an abstract and now tenders performance of the remainder of the agreement upon corresponding compliance on the part of the plaintiff. Issue having been joined on the answer, the defendant offered only oral testimony to prove the alleged covenant to sell land. The abstract put in evidence did not show clear title to the land vested in Mrs. Austin. The findings were to the effect, however, that while the abstract disclosed certain defects they were not in fact serious and that the plaintiff did not question the extraneous explanations which were made of them on behalf of the defendant during the negotiations about the proposed sale. The plaintiff attacked these findings and moved that others determining the issues in her favor be substituted, but her motion was denied. Under these conditions, the defendant now urges that the only thing to be considered is whether the findings will support the judgment. Let us view the case from that angle.
2, 3. As she had a right to do, the defendant stated the contract under which she received the plaintiff’s money, including the stipulation to furnish an abstract of the kind mentioned, and alleged that she has thus far performed her covenant. Her averments having been challenged by the reply, it was incumbent upon her to prove them as laid, for it is hornbook law that the allegations and proofs must agree. It is equally axiomatic that the verdict must be responsive to the issue. In this instance the condition portrayed in both the evidence and the findings is that the abstract indeed failed to show perfect title in the defendant, but that she otherwise made explanation of the apparent defects. In other words, she averred performance and attempted to prove a waiver of it. By analogy, this *411course is contrary to the rule laid down to the effect that a party, having taken a position in his pleading, cannot shift his ground during the trial nor mend his hold, except by proper amendment: Lillienthal v. Hotaling Co., 15 Or. 371 (15 Pac. 630); Deering v. Creighton, 19 Or. 118 (24 Pac. 198, 20 Am. St. Rep. 800); Bruce v. Phoenix Ins. Co., 24 Or. 486 (34 Pac. 16); Long Creek Building Assn. v. State Ins. Co., 29 Or. 569 (46 Pac. 366); Hannan v. Greenfield, 36 Or. 97 (58 Pac. 888); Young v. Stickney, 46 Or. 101 (79 Pac. 345).
4, 5. In the light of these principles, the findings, tantamount to a verdict as they are, neither respond to the issue nor support the judgment. The plaintiff raised the question appropriately by her motion to substitute other findings and as the decision on that point was made upon matters in writing and on file, it is not necessary that specification of the error should appear in the bill of exceptions: Section 172, L. O. L. The petition for rehearing is denied.
Reversed and Remanded.
Rehearing Denied.
Mr. Chief Justice McBride, Mr. Justice Benson and Mr. Justice Harris concur.