It is a rule so familiar as to need no illustration that a complainant must recover, if at all, upon the case made by his bill. Applying that rule, we are unable to see how the decree in this case can be sustained.
The only allegations in the bill upon which any relief as against the appellant can be based, are 1, the wrongful payment to him by Parsons of $534.11 of the company’s money, and 2, an attempt on his part to enforce by suit an unfounded and unjust claim against the company for $2,000. Various false and fraudulent representations are charged to have been made by Parsons, the president of the Western Indiana Coal Company, to the complainant’s agent, but it is nowhere charged that any such representations were made by the appellant, or that Parsons, in making them, acted or was authorized to act as his agent, or that any such relations existed between Parsons and the appellant as would make the appellant in the slightest degree responsible for Parsons’ acts. The decree, however, after finding that Parsons represented that the stockholders of the company had invested $3,500 in the mine and property of the company, and that such representation was false to the extent of $1,190.70, charged the appellant with such deficiency and required him to make it good to the company. To this extent the decree is a clear departure from the case made by the bill.
But if the bill had been so framed as to mabeThe appellant responsible for Parsons’ fraudulent representations, it is difficult to see upon what principle the decree conld be sustained even in that case. If the complainant, relying upon the false and fraudulent representations of the appellant or his agent,' was induced to purchase 392 shares in the capital stock of the company, she would doubtless have been entitled, on discovering the fraud, to rescind the contract of purchase and recover back the purchase money, or perhaps without rescinding, she might have maintained her action at law against the appellant for the fraud, and recovered such damages as she may havó sustained by reason thereof. The decree, however, instead of attempting to apply any of the remedies given by law’in cases of fraud, transforms what the bill alleges and the court finds to be a mere representation, into a contract or warranty, and then decrees its specific performance. This seems to us to be a species of relief which, under the pleadings and evidence in this case, is unwarranted.
We are unable, as the pleadings stand, to express any opinion as to the merits of the controversy between these parties. The case seems to have been tried upon a theory entirely different from any one properly arising from the averments of the bill. We are compelled, therefore, to reverse the decree and remand the cause for further proceedings, so that by suitable amendments to the pleadings, the merits of the controversy may be properly presented on another hearing.
Several cross-errors have been assigned by the appellee, which we will consider briefly. The first is, that the court erred in refusing to enter a decree against the appellant for §3,500, the entire amount paid by the appellee for said share of stock. Without pausing to discuss the evidence bearing upon this question, it is sufficient to say that no case for such a decree is made by the bill. There is no claim or allegation in the bill that appellee purchased said stock from appellant, or that appellant received or had the benefit of the money paid therefor, or that he was in any way responsible for the representations by which appellee was induced to make the purchase. So far as the bill shows, the appellant was an entire stranger to the transaction. Under these circumstances a decree against him for the purchase money would have been manifestly erz-oneous.
Again, it is claimed that the court erred in its decree as to the amount of money which the stockholders had invested in the company’s mine and property; and also in finding against the appellee as to all the other false representations charged in the bill. The questions here raised are questions of fact upon which the evidence is conflicting, and upon which we prefer to express no opinion, since the case must be heard again in the court below. Furthermore, as the bill is framed, such finding, so far at least as the appellant is concerned, is immaterial.
The remaining cross-error assigned, viz., that the court-erred in refusing to decree the repayment by Parsons of the-$500 paid todiim as a bonus, necessarily involves a consideration of evidence which, as we have said, is conflicting, and upon which it would be unwise for us to express an opinion.
■ For the errors above pointed out, the decree will be reversed and the cause remanded.
Decree reversed.