¶1 Dissenting. — Taking the complaint as quoted in the opinion of Mr. Justice Belt, it will be observed that the pleading does not charge in any way that the defendant Myra Helm made any representation whatever respecting the land or anything connected with the transaction or that she knew or ratified any statement made by her codefendant. The nearest approach, distant as it is, toward involving her, is the statement that the plaintiff paid “defendants” $250, but this is discounted and contradicted by the subsequent allegation in paragraph 5 referring to the defendant E. W. Helm, saying:
“That the said defendant deliberately, maliciously and with the express purpose and intent located the plaintiff upon the said wrong land and thereby obtained and secured from said plaintiff the said sum of $250.”
¶2*416 On this point, the testimony of the plaintiff himself is direct and positive to the effect that he paid the money to the defendant E. W. Helm.
¶3 To charge the defendant Myra Helm in the transaction, there are two ways in which the plaintiff might have proceeded. He could have stated that both defendants made the fraudulent representations of which he complains and have proved the allegation in that form against Myra by showing that the defendant E. W. Helm actually spoke the words but at the same time was acting, not only for himself, but also with her knowledge and approval as agent of his codefendant, Myra. On the other hand, he could have alleged that the defendant E. W. Helm made the representations and could have further averred facts from which the court could have drawn the conclusion that he was an agent of his codefendant for the purpose of making such representations and was acting in the actual or apparent scope of his authority in so doing: 2 C. J. 904.
¶4 The plaintiff has done neither of these things. All of his allegations, without any exception whatever, are against the individual E. W. Helm. It is not averred that he had any authority to bind his co-defendant by his statements or even that she knew anything about them. Indeed, according to the complaint, all the tortious acts charged were those of E. W. Helm, and took place after Myra had done everything required of her and the transaction had become a closed incident as to her. Under such a pleading it can make no more difference what E. W. Helm had done with the money paid him by the plaintiff than if the former had paid his rent or grocery bill with it. It is fundamental that a plaintiff cannot prove a better case than he makes in his *417 complaint and that the objection that the complaint does not state facts sufficient to constitute a cause of action can be raised for the first time on appeal without exception haying been made to the same in the trial court.
¶5 It will be observed also that in his effort to rescind the contract and recover the moneys paid, the plaintiff does not allege any offer or. opportunity extended to the defendant Myra Helm to place herself in the situation she occupied before relinquishing her homestead entry. While it is true that she had no title to the land which she could transfer to him, yet he should have given her notice of his rescission and have relinquished his entry on the same simultaneously with such notice so that she could reinstate herself if she chose. For aught that appears in the complaint, the plaintiff has all the rights in the land that Myra Helm had before and now seeks to recover the purchase price without reinstating her in her former position or giving her an opportunity to reinstate herself.
¶6 To allow recovery against the defendant Myi’a Helm on such a complaint would be to disregard all the rules of pleading whatever, as they have been hitherto laid down in all the statutes and works on pleading. The plaintiff should look alone for relief to the man with whom he exclusively dealt. For these reasons I dissent from the conclusion reached by the majority of my associates.