Beaudette v. Cavedon

• Decision Date: 26 April 1929
• Docket Number: No. 6639.,6639.
• Citation: 145 A. 874
• Parties: BEAUDETTE v. CAVEDON et al.
• Court: Rhode Island Supreme Court

145 A. 874

BEAUDETTE

v. CAVEDON et al.

No. 6639.

Supreme Court of Rhode Island.

April 26, 1929.

Exceptions from Superior Court, Providence and Bristol Counties; Arthur P. Sumner, Judge.

Action by Alexander Beaudette against Avelino Cavedon and others. Verdict against named defendant, and he brings exceptions. Exception to refusal of a new trial sustained, and case remitted therefor.

Felix A. Toupin, of Woonsocket, for plaintiff.

Greene, Kennedy & Greene, of Woonsocket, for defendant.

BARROWS, J. In this action of assumpsit, a verdict was rendered against defendant Cavedon in the sum of $1,497.08. His motion for new trial was denied, and he is here on exception. He also urges an exception to the trial court's refusal to direct a verdict in his favor on the ground of variance between declaration and proof.

The writ ran against Cavedon, Lavimodiere, and Charleson. The latter was not served. The declaration consisted of the common counts, and, in each, these three men were asserted to be indebted. Gauvin, who, as will later appear, participated in making the contract which plaintiff sought to establish, was omitted as a defendant because he had gone into bankruptcy. At the close of the testimony, plaintiff, after a statement from the court that it would direct a verdict in favor of Lavimodiere, discontinued as to him with consent of the court, but made no amendment to the declaration. The court in its charge to1d the jury that Lavimodiere's name had been "stricken from the declaration," and that the only defendant for it to consider was Cavedon.

The testimony in the light most favorable to plaintiff showed that Gauvin, "Grigor" (hereinafter correctly spelled Gregoire), and Charleson made an express contract with plaintiff May 4, 1021. By it plaintiff agreed to cart sand to enlarge a beach at a definite price per load, and do certain other work. The three just named told plaintiff they were acting for themselves and Cavedon, Lavimodiere, and Bonaveuture. They were to become members of a corporation, the Silver Lake Beach Amusement Company, about to be organized, and a few days later such corporation was created, and Cavedon became president. Plaintiff knew nothing of the corporation; Cavedon, as concessionaire under Gauvin, the lessor of the real estate on which the enterprise was conducted, had exclusive right to control bathing at the beach and lake where plaintiff dumped the sand in 1921. He had such control in 1920, and plaintiff had done similar work for him that year to the value of $1,600 and been paid therefor.

A misjoinder or nonjoinder of parties under General Laws 1923, c. 333, § 23, does not necessarily defeat an action. With consent of the court, amendments to the pleadings are permissible. While the right to amend is not unlimited, Mockel v. Pawtucket Gas Co., 48 R. I. 485, 139 A. 308, in the present case, if plaintiff sought to recover against Cavedon only, he might properly have amended the declaration to so state. Amendment, even after verdict, has been allowed in the reviewing tribunal. Gorton v. Potter, 16 R. I. 493, 17 A. 909. Where a case has been tried on the theory that an amendment has been made, it may be so treated on exceptions in this court. Joyce v. Cary, 43 R. I. 382. 113 A. 2. Hence we shall consider the present case both on the record as it exists and as the superior court assumed it existed, in order to determine whether the verdict may be sustained.

Treating the record as its stands, the declaration asserted that Lavimodiere, Charleson, and Cavedon were joint obligors. Discontinuance as to Lavimodiere and failure to serve Charleson did not alter the fact that a joint obligation of three was declared upon. Differing from the rule in actions ex delicto, 21 R. C. L. 613, it is well established that, where a declaration in assumpsit sets out a joint obligation, and proof shows that only a portion of defendants made, or are chargeable with, the contract, there has been a fatal variance. 31 Cyc. 707. 13 C. J. 755, cites many cases, of which we have examined Jones v. Engelhardt, 78 Ala. 505 (common counts); Mace v. Page, 33 Mich. 38 (common counts); Spann v. Grant, 83 Miss. 19, 35 So. 217 (common counts); Goodale v. Page, 92 S. C. 413, 75 S. E. 700 (common counts); Rentz v. Live Oak Bank, 61 Pla. 403, 55 So. 856; Thompson v. Penn, 100 Ga. 234, 28 S. E. 39; Pluard v. Gerrity, 146 Ill. App. 224; Smythe v. Dothan F. & M. Co., 166 Ala. 253, 52 So. 398 (common counts); Hibberd v. Hubbard, 211 Pa. 331, 60 A. 911; Rohr v. Davis, 9 Leigh (36 Va.) 30 (common counts). Hence, if we treat the declaration as...