Charles E. Burleson Et Ux. v. Nellie M. Grimm Fox

• Decision Date: 03 October 1928
• Citation: 143 A. 298,101 Vt. 225
• Parties: CHARLES E. BURLESON ET UX. v. NELLIE M. GRIMM FOX
• Court: Vermont Supreme Court

143 A. 298

101 Vt. 225

CHARLES E. BURLESON ET UX. v. NELLIE M. GRIMM FOX

Supreme Court of Vermont

October 3, 1928

May Term, 1928.

Pleading---G. L. 1796---Amendment---"Premises" as Used in Phrase in Count, "By Means of the Premises."

1. G L. 1796, providing that pleadings may be amended in matters of substance at any stage of proceedings, under direction and in discretion of court, upon such terms as court shall impose, does not permit an amendment which will introduce a new cause of action.

2. Amended count, in tort action to recover damages for alleged conversion of specified article of personal property, which was same as first count, but contained additional allegations that at time of alleged conversion a partnership relation existed between defendant and a person since deceased, that they converted the property to their own use as copartners and that defendant was the only surviving partner, held not to introduce a new cause of action, since their liability for damages was the same whether conversion was by them as individuals or copartners, they, in either case as joint tort-feasors, being jointly and severally liable therefor and cause of action after death of one continuing to exist against the other.

3. "Premises" as used in phrase in concluding paragraph of count, "By means of the premises," held to mean facts previously stated in that count.

4. Amendment which is merely same matter more fully laid is proper under provisions of G. L. 1796.

ACTION OF TORT for conversion of specified personal property. Plea general issue. Heard by court at March Term, 1928, Washington County, Thompson, J., presiding. Plaintiffs were permitted to amend the complaint. Motion by defendant to dismiss plaintiffs' amendment to their complaint. Motion overruled. The defendant excepted, and pursuant to statute cause was passed to Supreme Court before final judgment for hearing and determination of exceptions. The opinion states the case.

Affirmed and remanded.

Theriault & Hunt for the defendant.

Gelsi Monti for the plaintiffs.

Present: WATSON, C. J., POWERS, SLACK, MOULTON, and CHASE, JJ.

OPINION

WATSON

This is an action of tort to recover damages for the alleged conversion of numerous specified articles of personal property owned and possessed by the plaintiffs, demanding damages in the sum of one thousand dollars. The complaint is in one count, the conversion being therein alleged as on the 6th day of January, 1928, by the defendant to her own use. The complaint was dated January 7, 1928, served upon defendant January 19, and filed in Washington county court to which it was made returnable, January 23. The personal property thus alleged to have been converted is specified in the original complaint with value as follows: "one Champion Evaporator and arch four feet wide and twelve feet long with draw-off on the right side, of the value of three hundred eighty dollars, one twenty-barrel storage tank of the value of forty-two and 50-100 dollars, one four-barrel gathering tank of the value of thirty-two dollars, five hundred No. 4 sap spouts of the value of twenty dollars, and five hundred thirteen-quart special buckets of the value of three hundred thirty dollars, also one set of grates for sugaring together with one gathering barrel and thermometer of the value of thirty dollars, * * * *" That count contains no allegation as to the location of said property when thus converted.

At the following March term of said court, the plaintiffs, by leave of court first had and obtained, filed in said cause two amended counts to their complaint. The first of these amended counts differs from the original count in the complaint only as to the date of the alleged conversion and in specifying the location of the property: In the original the date given is January 6, 1928, while in the amended count it is September 12, 1927; and in the latter is an additional allegation that at the time of the conversion the said property was located and used by the plaintiffs on their home farm in Northfield.

The second amended count is in all respects as to substance and dates like the first, except that the last two paragraphs contain further allegations, the first to the effect that at the time of the alleged conversion the defendant and one Esther M. Grimm of Rutland were doing business at, etc., under the firm name and style of G. H Grimm Company, as a partnership, and the said Esther M. Grimm and the defendant, as such copartners, on the 12th...