#### PARKER R. ANDERSON v. J. M. CHILES and the KENILWORTH COMPANY.

(Filed 14 December, 1927.)

Contracts — Pleadings—Evidence—Actions—Public Policy — Government.

Where the complaint declares upon one contract under which plaintiff claims compensation for services rendered, he may not recover upon a different contract not alleged in the complaint relating to the same subject-matter, the probater without the allegata being vitally defective. As to whether the contract in this case to induce public officials' to enter into it in behalf of the United States government, was contra bonos mores or against public policy, is not decided. '

Appeal by plaintiff from Baper, Emergency Judge, at February Term, 1927, of Buncombe.

Affirmed.

Action upon contract for personal services rendered by plaintiff to defendants relative to the purchase of the Kenilworth Hotel, located in Buncombe County, N. C., by the United States.

At the close of plaintiff’s evidence defendants’ motion for judgment as of nonsuit was allowed.

From judgment dismissing the action, as upon nonsuit, plaintiff appealed to the Supreme Court.

Kitchin & Kitchin and Galloway & Galloway for plaintiff.

Merrimon, Adams & Adams for defendants.

Connoe, J.

The cause of action alleged in the complaint is the breach of a contract entered into by and between plaintiff and defendant, J. M. Chiles, acting in his own behalf and as an agent or officer of his codefendant, the Kenilworth Company, on or about 11 March, 1921. At this time the Kenilworth Hotel, located in Buncombe County, N. C., and owned by the defendant corporation, was held, used and occupied as a hospital by the United States Public Health Service, under a lease from the owner. Defendants wished to enter into negotiations with authorized officers of the government for the sale of said hotel to the United States. By his contract with defendants, as alleged in the com*695plaint, plaintiff undertook to aid defendants in making said sale by interesting officers of tbe government in tbe purchase of said hotel.

In bis deposition offered at tbe trial as evidence in bis behalf, plaintiff testified as follows: “I maintain that I bad two contracts with Mr. Chiles. I am not claiming under both these contracts; tbe first contract was superseded by tbe second.” Tbe evidence tended to show that tbe negotiations for tbe sale of tbe hotel ended in July, 1921; tbe offer of defendants to sell tbe hotel to tbe United States was declined. Defendants thereupon undertook to procure tbe cancellation of tbe lease, tbe return of tbe hotel to defendant corporation, and payment by tbe government of damages resulting from tbe use of tbe hotel as a hospital. Plaintiff testified that tbe second contract, which superseded tbe first contract alleged in tbe complaint, was then entered into by and between plaintiff and defendants. Tbe evidence offered by plaintiff, both by bis deposition and by tbe deposition of Mr. Morgan, tended to show tbe performance by plaintiff of tbe second contract, to which no reference is made in tbe complaint. It is upon this contract that plaintiff now seeks to recover in this action.

Tbe motion for judgment as of nonsuit was properly allowed, for there is a fatal variance between tbe allegations of tbe complaint, and tbe proof offered by plaintiff, with respect to tbe contract upon which be seeks to recover.

In Sumrell v. Salt Co., 148 N. C., 552, it is said in tbe opinion of this Court: “It is elementary that a plaintiff may not declare upon one contract and, without amendment, recover upon another. If tbe rules of pleadings were otherwise, a defendant would never be able to prepare bis defense.” Tbe judgment must be affirmed upon this principle, which is applicable upon this record.

It is not necessary for us to consider or to discuss tbe further ground upon which defendants contend that tbe judgment should be affirmed. We do not decide whether tbe contract as alleged in tbe complaint, or as proven by tbe evidence, is void, for that it is contra bonos mores or in contravention of public policy. It is well settled that agreements to procure contracts by secret influence upon public officers authorized to make them for tbe benefit of individuals are void; tbe courts will not enforce such agreements, nor will they grant relief in actions arising out of such agreements. These principles are too well-settled in tbe law to require citation of authorities to sustain them. Whether or not they are applicable to tbe contract for tbe breach of which plaintiff seeks to recover in this action, is not necessarily presented for decision upon this record. We therefore do not decide this question.

There was no error in allowing tbe motion for nonsuit. Tbe judgment dismissing this action is

Affirmed.