Flanders v. Cobb

• Decision Date: 17 February 1896
• Citation: 34 A. 277,88 Me. 488
• Parties: FLANDERS v. COBB.
• Court: Maine Supreme Court

34 A. 277

88 Me. 488

FLANDERS

v. COBB.

Supreme Judicial Court of Maine.

Feb. 17, 1896.

(Official.)

Report and exceptions from supreme judicial court, Somerset county.

Assumpsit by Benjamin L. Flanders against Orlando Cobb. Submitted on report and exceptions Judgment for defendant.

E. N. Merrill and G. W. Gower, for plaintiff.

S. S. Brown, for defendant.

FOSTER, J. The plaintiff and defendant traded horses. The defendant was to pay $75 to the plaintiff as the difference between horses, and in lieu of the money turned out a negotiable promissory note of $80, which he held against one Joseph Frost. The note was not then due, and the defendant indorsed it in blank. The note was not paid at maturity, nor was the defendant seasonably notified, so as to hold him as an indorser.

The plaintiff claims that while the trade was going on the defendant represented that the maker of the note was a man of means, and financially responsible, and that these statements were false and fraudulent, and made with intention of deceiving him, and that he relied upon them, and was thereby deceived and injured.

On the other hand, the defendant asserts that he made no misrepresentations; that what he said was but the honest expression of an opinion; that the plaintiff neglected seasonably to notify him, so as to hold him as an indorser of the note, and that in consequence of that neglect this suit was brought in which he seeks to collect his debt.

The action was originally framed in assumpsit, the declaration containing three counts. At the second term the presiding justice allowed an amendment of the writ by striking out the three counts in assumpsit and substituting therefor a count in case for deceit. To the allowance of this amendment the defendant's counsel seasonably objected, on the ground that it changed the form as well as introduced a new cause of action.

The case is before us upon exceptions as well as report.

1. The first question, and one of vital importance, is whether this amendment was allowable.

We think it was not.

Our attention has been called to no case under our system of practice that goes to the extent of authorizing the court to allow an amendment which changes the nature of the action from assumpsit to tort. The case of Rand v. Webber, 64 Me. 191, was never intended to authorize amendments to the extent of allowing the form or nature of the action to be changed. Upon examination of the facts in that case, it will be found that the amendment there was but the correction of an error in the writ, the correction of an amendment (improperly made) to the original declaration, so as to restore the declaration as originally framed, and prevent a change in the nature of the action from what seemed to be its form as originally drawn, and to escape the statute of limitations that might be pleaded to another suit. The original count was more in the nature of deceit than assumpsit, and the last amendment was but a restoration to its former self,—the spirit taking on form "in the furtherance of justice." "As the special count stood," say the court, "it could easily be amendad so as to have been an action of deceit." In Dodge v. Haskell, 69 Me. 429, 434, this court, in referring to Rand v. Webber, supra, remarked that it "has been erroneously supposed to allow an amendment to the extent of allowing the nature of the action to be changed. That case merely allowed a correction of the writ, already improvidently and improperly amended, that such a result might be avoided."

In the present case, the change is absolute from assumpsit to an action on the case for deceit. It is not a restoration of form as originally drawn. The cause of action, as originally stated, was clearly and distinctly set forth in appropriate counts based upon an alleged promise. There was no defect to be amended, or correction of the cause of action as originally stated, as in Rand v. Webber, supra. The amendment was not the correction of a defect in pleading, but the addition of a cause of action not set forth in the original declaration, as well as a change of the nature of the cause of action. This was clearly wrong. While the greatest liberality is allowed in the matter of amendments, the authorities are abundant and uniform, that no new cause of action can be introduced by way of amendment against the objection of the defendant.

In Houghton v. Stowell, 28 Me. 215, it was held that a change in the form of action from debt to case was unauthorized, and that the court had no authority to allow it.

A fortiori, in the present case, would it be unauthorized to allow an amendment which changes the nature of the action from assumpsit to an action on the case for deceit. The plea of the...