Daley v. Gates

Citation27 A. 193,65 Vt. 591
CourtUnited States State Supreme Court of Vermont
Decision Date29 August 1893
PartiesDALEY v. GATES.

Exceptions from Washington county court; Ross, Chief Judge.

Action on the case by Nellie C. Daley against Mae E. Gates for enticing away plaintiff's husband and for criminal conversation. At the term to which the writ was returnable, plaintiff filed a new count. A motion to dismiss on the ground that the new count contained a new cause of action was overruled, and defendant excepted. Affirmed and remanded.

Lord & Boynton, for plaintiff.

W. B. C. Stickney, for defendant.

ROWELL, J. The original declaration charges that the defendant enticed away plaintiff's husband, per quod consortium amisit. The new count charges criminal conversation with him, with the same per quod. An amendment cannot be allowed that introduces a new cause of action; but as long as the plaintiff adheres to the contract or the injury originally declared upon, an alteration of the modes in which the defendant has broken the contract or caused the injury is not an introduction of a new cause of action. The test is whether the proposed amendment is a different matter,—another subject of controversy,—or the same matter, more fully or differently laid, to meet the possible scope and varying phases of the testimony. Cassell v. Cooke, 8 Serg. & R. 268; Stewart v. Kelly, 16 Pa. St 160; Maxwell v. Harrison, 8 Ga. 61; Stevenson v. Mudgett, 10 N. H. 338, 34 Amer. Dec. 155, and note. This rule is variously illustrated by the cases. Thus, in Marlborough's Ex'rs v. Widmore, 2 Strange, 890, the plaintiffs declared as executors on a promise to the testator, but were allowed to amend by declaring on the promise as made to themselves. So in Ten Eyck v. Canal Co., 19 N. J. Law, 5, plaintiff was allowed to amend by declaring for another injury occasioned by the same wrongful act originally complained of. In an action for goods sold and delivered, you may amend by adding a count for not accepting the goods. Mixer v. Howarth, 21 Pick. 205. So, in covenant, you may amend by assigning new breaches of the same covenant. Stewart v. Kelly, cited above. You may also amend by declaring on another covenant in the same instrument, if both covenants and the breach thereof relate to the same thing. Boyd v. Bartlett, 36 Vt 9; TiUotson v. Prichard, 60 Vt 94, 14 Atl. Rep. 302. A declaration on a warranty can be amended by showing that the warranty covered things not originally declared for. Church v. Salt Co., 32 Conn. 372. If an action of this kind can be maintained by a wife, concerning which we are not called upon to express an opinion, the cause of action is the wrongful deprivation of the plaintiff of that to which she is entitled by virtue of the marital relations, namely, the consortium or the...

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37 cases
  • Johnson v. Hardware Mut. Cas. Co., 1267.
    • United States
    • United States State Supreme Court of Vermont
    • 4 Octubre 1938
    ......305, 312, 95 A. 692; Davis' Adm'x v. Rutland R. Co., 82 Vt. 24, 29, 71 A. 724. The rule thus expressed traces back to Daley v. Gates, 65 Vt. 591, 592, 27 . 1 A.2d 820 . A. 193, where it is thus stated: "The test is whether the proposed amendment is a different ......
  • W. O. Johnson v. Hardware Mutual Casualty Co
    • United States
    • United States State Supreme Court of Vermont
    • 4 Octubre 1938
    ......305, 312, 95 A. 692; Davis' Admx. v. Rutland R. R. Co. ,. 82 Vt. 24, 29, 71 A. 724. The rule thus expressed traces back. to Daley v. Gates , 65 Vt. 591, 592, 27 A. 193,. [1 A.2d 820] . where it is thus stated: "The test is whether the. proposed amendment is a different ......
  • Alabama Consol. Coal & Iron Co. v. Heald
    • United States
    • Supreme Court of Alabama
    • 15 Junio 1907
    ...... same covenant; but you are seeking the same thing all the. time, namely, damages for the breach of that covenant.". Daley v. Gates, 65 Vt. 592-594, 27 A. 193. "The. original declaration filed June 24, 1892, went only upon the. charge that an unblocked frog was a ......
  • Charles C. Patterson's Adm'r v. Modern Woodmen of America
    • United States
    • United States State Supreme Court of Vermont
    • 11 Octubre 1915
    ...... Carpenter , 34 Vt. 535. Defendant says the test is. whether the plaintiff adheres to the contract originally. declared upon, citing Daley v. Gates , 65. Vt. 591, 27 A. 193; and this is no more nor less than the. rule stated by Rowell, C. J., in Davis' Admrx. . v. Rutland R. R. ......
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