Acquital v. Crowell
| Decision Date | 01 December 1850 |
| Citation | 1 Cal. 191 |
| Court | California Supreme Court |
| Parties | ACQUITAL, ET AL. v. CROWELL, ET AL. |
APPEAL from the Superior Court of the City of San Francisco. The facts are related in the opinion of the Court.
Gaegory Yale, for Plaintiffs.
——, for Defendants.
By the Court, HASTINGS, Ch. J. This action was instituted in the name of Acquital, complainant, against the defendants, for the recovery of $6709 50, for Sandwich Island potatoes sold to one of the defendants on board of the schooner Elizabeth, by sample.
The plaintiffs on the trial having examined several witnesses, closed, and the defendants moved for a nonsuit, on the ground that no evidence had been introduced as to the quantity and value of the potatoes. Whereupon, the plaintiff, Acquital, introduced the following paper in evidence:
The defendants again insisting upon a nonsuit for the reason that the contract was in writing, and there being a nonjoinder of parties plaintiffs, and a misjoinder of parties defendants, the plaintiffs were permitted to amend, by adding the name of Bourgeoise as co-plaintiff.
Could the plaintiffs thus amend, and was the variance between the complaint and proof fatal? The 64th section of the Practice Act provides that no variance between the allegation in a pleading and the proof shall be deemed material, unless it have actually misled the adverse party to his prejudice in maintaining his defence on the merits, and if so proved, the pleadings may be amended on such terms as shall be just.
By the 68th section, the Court may at any time, in furtherance of justice, and on such terms as may be proper, amend any pleading or proceeding by adding or striking out the name of any party.
It will be perceived by an examination of the sections of the statute referred to, and other sections of the same statute in relation to amendments, that the plaintiff has the right to amend so long as he has a substantial cause of action against one or several defendants, and is authorized to conform the pleadings to the facts, by order of the Court, upon such terms as will not work injustice to the defendant. In this case we th...
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Territory Montana v. Mcclin
...See authorities already cited. If the confessions were improperly admitted, the judgment of conviction should be reversed. Acquittal v. Crowell, 1 Cal. 191;Junis v. Steamer Senator, Id. 459;Grimes v. Fall, 15 Id. 63.H. N. BLAKE, district attorney, first district, for respondent. The transcr......