Duncan's Administrator, Respondent, vs. Fisher, Appellant, 18 Mo. 403

€r amble, Judge, delivered the opinion of the court. ' Duncan, in his petition, charges that he left certain articles of personal property -with the defendant, Eisher, at St.

Joseph, which the defendant undertook, for a consideration, to keep safely, “ and forward in a safe and careful manner, without unnecessary delay, to the mouth of Big Tarkio, in Holt county.” The default of the defendant is thus charged in the petition : “ The defendant, after he had received the goods, failed and refused to. forward them to the mouth of Big Tarkio, or to any other place where he could have sent them to plaintiff, but, on the contrary thereof, defendant has retained said goods and chattels, and has utterly refused to deliver the same to the plaintiff, although demanded; but plaintiff says that the defendant has converted said goods and chattels to his own use, and still refuses to deliver the same to the plaintiff, or otherwise account for the same.” The,defendant, in his answer, alleges, that he forwarded the goods, and denies the conversion of them to his use.

After the evidence was closed at the trial, the court instructed the jury, “ that if the plaintiff left the goods with the defendant, and the defendant agreed to keep them and forward them to the plaintiff, and received pay therefor, and that the goods were afterwards lost to the plaintiff by the neglect of the defendant, the jury should find for the plaintiff the value of the articles so lost.” 1.

The case made in the petition is clearly a case of trover and conversion.- A bailee, whose duty it was to forward the goods, is charged with a failure to forward them, keeping them in his possession, refusing to deliver them, and converting them to his own use. The jury are told that, upon such a petition, the plaintiff is entitled to their verdict, if he placed the goods in the hands of the defendant to be forwarded, and they were lost by the negligence of the defendant. The instruction thus given puts before the jury a different case from that made in the petition.

The change made in our practice does not relieve the parties from the necessity of establishing, by evidence,-the case made in their respective pleadings, or authorize a verdict on evidence, which shows a different right of recovery. The code provides for amendments at the trial, in order to conform the pleadings to the facts as developed in the evidence, but before the verdict is given for a plaintiff, his petition must state the cause of action which the evidence sustains.

If the court, by an instruction, directs a finding in bis favor upon a cause of action different from that stated in tbe petition, such instruction is erroneous. An action of trover would not lie against tbe 'present defendant for a loss by negligence. 1 Ohitty’s PI. 178. 2 Saund. 47 f. Tbe remedy must be by action on tbe case or assumpsit. Tbe plaintiff bas cbosen to put bis right to recover upon a conversion of tbe goods by the defendant, and bas not pretended, in bis petition, that they were lost by tbe negligence of the defendant.

It bas been repeatedly decided by this court, that tbe plaintiff must recover upon tbe case made in bis petition, and this rule is in conflict with tbe instruction given in tbe present case. Tbe judgment is, with tbe concurrence of tbe other judges, reversed, and tbe cause remanded.