#### Register Gazette Co. v. W. I. Larash et al.

1. Pleading—Extent of Recoupment Under General Issue.—Under the general issue, damages may be recouped only to the extent of the plaintiff’s demand.

3. Same—Matters of Set-off Inadmissible Under Plea Alleging No Damages.—Under a plea averring a breach of warranties, but alleging no damages in consequence or resulting therefrom, matters of set-off are inadmissible.

3. Practice—Allegations and Proof Must Correspond.—Allegation and proof must correspond. Allegation without proof is unavailing and proof without allegation is equally unavailing.

4. Same—Proper Manner of Malting Amendments to Pleadings.—Amendments to pleadings must be made by leave of court and before judgment is rendered.

Assumpsit.—Error to the Circuit Court of Schuyler County; the Hon. Thomas N. Mehan, Judge, presiding. Heard in this court at the May term, 1903.

Reversed and remanded.

Opinion filed August 28, 1903.

L. A. Jarman and R. K. Welsh, attorneys for plaintiff in error.

D. L. Mourning and D. H. Glass, attorneys for defendants in error.

Mr. Presiding Justice Brown

delivered the opinion of the court.

This was an action of assumpsit to recover $600, balance of the contract price for the sale of a printing press. The defendant pleaded the general issue and set-off. The jury was waived and the cause tried by the court. The trial resulted in a finding and judgment for the defendant and *237against the plaintiff upon the plea of set-off for $700. The plaintiff appeals.

The defendant pleaded the general issue, upon which issue was joined, and two special pleas to which a demurrer was sustained. The defendant then filed an amended plea which set out certain warranties of the press and averred a breach of the same, but did not allege any damages in consequence, or resulting therefrom, to which plea plaintiff filed a replication. The plea was equivalent to nothing more than the general issue, under which damages could be recouped only to the extent of the plaintiff’s demand. Under this plea there could be no recovery in set-off. The defendant also pleaded the common counts in set-off to the extent of $1,000. The plaintiff joined issue on the plea of set off. Such was the state of the pleadings at the time of the trial and until after the close of the term of court at which judgment was rendered. We do not determine whether the evidence would warrant the finding of the trial court if the record contained pleadings to sustain it. Allegation and proof must correspond. Allegation without proof is unavailing, and proof without allegation is equally unavailing. It is unnecessary to review the evidence upon which the trial court reached the conclusion that the defendant should recover $700 from the plaintiff. None of it tended to sustain the plea of set-off contained in the common counts so pleaded. The defendant recognized this fact and in order to have a plea of set-off to correspond with the proof, after the rendition of the judgment and after the term of court had closed, without application or leave, wrote the following in, and as an addition to, the plea of set-off. previously filed:

> "And in the like sum for money paid out by the defendants for part purchase price of press and folder, and for money paid out for labor, insurance, freight and repairs on the press and folder and. due from the plaintiff to the defendants on account of the breach of warranty by the plaintiff in the contract as set out in the first and second counts of the plaintiff’s declaration.”

This was manifestly improper. The statute prescribes *238the only time and manner of making amendments. They must be made by leave of court and before judgment is rendered. The attempted insertion of this amendment in the manner above stated is unavailing, and the action of counsel is a nullity. For the reason that the record contains no plea to sustain the judgment of set-off rendered against the plaintiff, and as a reminder to counsel that it will be more availing to comply with the statute in amending pleadings, the judgment of the Circuit Court will be reversed and the cause remanded.