Appellant is engaged in farming and stock raising and respondent is engaged in buying, feeding, and selling livestock. In August, 1936, these parties entered into what is termed a memorandum agreement by which appellant contracted, among other things, to pasture 700 head of cattle, 600 at $3.50 per head and 100 at $3.25 per head, during the summer of that year. It appears that after the contract was made, respondent found he required more pasture than that covered by the memorandum agreement and that appellant, either acting for and in behalf of respondent, arranged for additional pasture with one J. H. Stocking, or, acting for himself, and not for respondent, contracted with Stocking for additional pasture and then contracted such additional pasturage to respondent. It further appears that respondent claimed appellant had acted for him in obtaining additional pasturage and that he therefore paid Stocking for such pasturage at the Stocking contract price. Appellant thereafter filed a complaint against respondent setting forth three causes of action, only one of which, the first, is involved on this appeal
The first cause of action alleged in substance that on or about the 19th day of August, 1936, respondent contracted with appellant for pasturage for cattle at $3.50 per head during the balance of that season; that between August 19, 1936, and September 3, 1936, appellant received from respondent 1173 head of cattle for pasturage at the price so alleged to have been agreed upon; that appellant supplied pasturage for said cattle during the balance of said season and in every respect faithfully and fully performed the terms of the contract to be performed on his part; that respondent *Page 463 failed, neglected, and refused to pay for such pasturage, with the exception of certain stated payments, alleged to have been made on the contract, and for certain hay also contracted, but not involved in this controversy, and that there was a balance due appellant from respondent in the sum of $870.50.
Upon the trial, at the close of all the evidence, respondent moved for judgment of nonsuit on each of appellant's three causes of action, which the court denied. Thereupon respondent moved for a directed verdict which the trial court also denied. The case then went to the jury. It returned a verdict in favor of appellant on his first cause of action for $870.32 and in favor of respondent on appellant's second and third causes of action.
The contract entered into between appellant and respondent was written on the face of two blank check stubs. Appellant signed one (which he offered and which was admitted in evidence in support of his first cause of action) and respondent signed the other. By its terms, as above stated, appellant agreed to furnish, and respondent agreed to purchase, pasturage for 700 head of cattle, 600 at $3.50 per head, and 100 at $3.25 per head. That contract would, of course, constitute the basis of one, the first, cause of action, and if appellant purchased the Stocking pasturage for himself, and not for respondent, and then contracted it to respondent, that would constitute the basis of another, or second, cause of action for pasturage. Appellant, however, pleaded but one cause of action for pasturage, the first, and that was based upon the memorandum agreement. No other cause of action for pasturage was alleged nor did appellant move to amend his complaint to conform to the evidence concerning the Stocking pasturage, for which the jury returned its verdict.
The record shows, and indeed it is not disputed, that respondent paid appellant in full for the cattle pastured under the terms of the memorandum agreement pleaded by appellant's first cause of action; therefore, there was no evidence whatever to support a judgment against respondent for pasturage on that cause of action. And if appellant purchased pasturage from Stocking and then sold it to respondent, he failed to plead the sale, and he also failed to ask *Page 464 leave to amend his complaint to cover that item. This court held in Independent School Dist. v. Weiser Nat. Bk., 45 Idaho 554,263 P. 997, that a judgment for plaintiff was properly refused as to an item not alleged in the complaint, where, as here, there was no request to amend. Furthermore, it is elementary that there must be a sufficient pleading to support a judgment. I therefore dissent.
ON REHEARING. (October 11, 1938.)