OPINION
EVANS, J.
The
original petition charged, in substance, that the defendant
purchased and converted to its own use certain grain
specifically described therein, upon which the plaintiff had
a landlord's lien for rent. About one year thereafter,
she filed an amendment to her petition, wherein she
reasserted her original allegations, and added thereto
certain other allegations. She prayed therein for the same
recovery as in the original petition. The defendant filed a
motion to strike the amendment, on the ground that it
presented a new and distinct cause of action, and was,
therefore, barred by the statute of limitations. The motion
was sustained. The question in the case is: Did the amendment
present a new and distinct cause of action, in such sense
that it was barred by the statute of limitations; or was it a
further specification and amplification of the original
petition?
A
comparison of the original and the amendment is not
practicable, except by setting them out. The original
petition was as follows:
"That
the plaintiff is a resident and citizen of Hardin County, Iowa; that the defendant runs and operates an
elevator at Iowa Falls, Iowa; that the plaintiff in this
action is the owner of certain land in Hardin County, Iowa,
which land is known as the Riverside Farm, and which farm the
plaintiff in this action rented to one Frank T. Pemberton;
that the land is described as follows: [description]; that
said premises were rented to the said Frank T. Pemberton by
an oral lease, and that the relationship of landlord and
tenant existed between this plaintiff and the said Frank T.
Pemberton; that, during the year 1919, the said Frank T.
Pemberton raised certain grain upon said premises, and that
certain parts of this grain were sold to the defendant in
this action; that there is attached to this petition and made
part hereof Exhibit A; that said Exhibit A is an itemized
statement of the amounts and the value of the grain delivered
by the said Frank T. Pemberton to the defendant in this
cause; that said plaintiff claims said grain and the value
thereof as being raised upon the premises of this plaintiff
by a tenant, and that she is entitled to recover the value of
said grain from the defendant, who purchased said grain from
the said Frank T. Pemberton; that said grain was of the value
of $ 440.58; that this claim is the property of the
plaintiff; that proper demand has been made from the
defendant; that no part of same has been paid.
"Wherefore,
plaintiff demands judgment against the defendant in the sum
of $ 440.58, together with interest from August 21, 1919, and
costs.
"Kelleher,
Hanson & Mitchell,
"Attorneys
for Plaintiff.
"Exhibit A.
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"Farmers Elevator Company,
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"Iowa Falls, Iowa,
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"In Account With
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"Fannie W. Emeny.
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"1919
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Aug. 9, To 1720 Ibs. oats @ 64c
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$ 34.40
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Aug. 9, To 1990 Ibs. oats @ 64c
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39.81
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Aug. 11, To 1810 Ibs. oats @ 67c
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37.90
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Aug. 11, To 2010 Ibs. oats @ 67c
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42.09
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Aug. 12, To 1840 Ibs. oats @ 67c
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$ 38.53
|
Aug. 12 To 2000 Ibs. oats @ 67c
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41.88
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Aug. 13 To 2160 Ibs. oats @ 67c
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45.23
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Aug. 14 To 2140 Ibs. oats @
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45.88
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Aug. 16 To 2050 Ibs. oats @ 67c
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42.92
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Aug. 21 To 2360 Ibs. oats @ 65c
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47.94
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To 1800 Ibs. ear corn @ $ 1.00
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for 75 Ibs
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24.00
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Total
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$ 440.58"
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The amendment was as follows:
"For
further and other cause of action, plaintiff avers that the
defendant is a corporation organized under the laws of the
state of Iowa; that the plaintiff was the owner, at all times
in this petition referred to, of the following described
premises: [description]. That the said premises were leased
for the year commencing March 1, 1919, and ending March 1,
1920, to one Frank T. Pemberton, by an oral lease (except as
to the amount of rental), whereby the said plaintiff became
entitled to the reasonable rental value of the said premises
for the said year, which reasonable rental value the
plaintiff avers to have been not less than the sum of $ 10
per acre, or $ 2,300. That crops were grown upon the said
premises by the said Frank T. Pemberton and one Sam Snyder,
the latter occupying the premises, whether as employee,
subtenant, or otherwise, the plaintiff is unable to state.
That the plaintiff had a lien upon said crops for the whole
of the said rental due from the said premises, or, to wit,
the sum of $ 2,300, which said rentals are, and were at the
time of the filing of this suit, unpaid, and that the
plaintiff is, and was at the time of the filing of the
original petition herein, entitled to enforce her lien
against all crops grown upon said premises, into whosesoever
hands the same had passed. That there was delivered to and
taken into possession by the said defendant, on or about the
date specified in the Exhibit A hereto attached, the
quantities of grain, consisting of corn and oats, set forth
in the said Exhibit A, and which were of the total value, on
said dates, of not less than the amounts set forth in the
said Exhibit A, and of an aggregate value for all of said
items of $ 440.58. That there is attached to
the original petition, herein filed, marked Exhibit A, and by
reference made part hereof, a correct, true, and itemized
statement of account of the quantities of grain, corn, and
oats grown upon said premises which were received by and
passed into the possession of the said defendant upon the
respective
dates shown in the said exhibit, and which was of the value
as therein shown, upon all of which the said plaintiff had a
lien to secure the rental for said premises, and which said
lien was never by the plaintiff released. That the said
defendant, long prior to the commencement of this action,
intermingled the said grain with other grains, and
transported and shipped the same beyond the state of Iowa,
and because thereof, it was impossible to levy a
landlord's writ of attachment upon the identical grain in
the hands of the said defendant. That defendant refused to
deliver up said grain or pay the value thereof, though due
demand was made therefor. And because of the facts herein
stated and set forth, the plaintiff is entitled to recover
the value of the said grain, as hereinbefore averred, the
plaintiff's lien for rent thereon being in an amount
greater than said value. That this action is brought for the
recovery of the said rent, and for the enforcement of the
plaintiff's lien therefor, and this action is brought to
recover rent accrued within one year previous thereto, upon
the premises of the plaintiff described in the petition. This
action is brought for rent alone, and that, by reason of the
premises, the said defendant has become, and is, indebted to
the plaintiff in the amount of the values hereinbefore
averred.
"Wherefore,
the plaintiff demands judgment against the said defendant for
the sum of $ 440.58, together with costs."
The
description of the land in each case was identical. The
difference between the original and the amendment consists,
in substance, in the following allegations of the amendment:
(1) That the defendant was a corporation; (2) that the action
was brought for rent alone; (3) that the oral lease referred
to in the petition did not provide a specified rent, but that
a reasonable rental was $ 10 per acre; (4) that the amount of
rent due the plaintiff, and for which she had a
landlord's lien, was largely in excess of the amount
claimed from the defendant, and that such sum total was $
2,300, being $ 10 an acre upon 230 acres.
The original and the amendment refer to the same
land and to the same tenant and to the same lease for the
same year and to the same property purchased by the
defendant, and both claim from the defendant the same exact
amount, $ 440.58. The claim set forth in the amendment is
predicated, in terms, upon Exhibit A of the petition. It is
well settled in this state that the commencement of an action
tolls the statute of limitations, and that the statute will
not be available as a bar to any appropriate amendment which
seeks to amplify or correct the original petition and to
support the identical cause of...
