Foste v. Standard Life & Acc. Ins. Co.

• Decision Date: 31 December 1894
• Citation: 38 P. 617,26 Or. 449
• Parties: FOSTE v. STANDARD LIFE & ACC. INS. CO. OF DETROIT, MICH.
• Court: Oregon Supreme Court

38 P. 617

26 Or. 449

FOSTE v. STANDARD LIFE & ACC. INS. CO. OF DETROIT, MICH.

Supreme Court of Oregon

December 31, 1894

Appeal from circuit court, Multnomah county; H. Hurley, Judge.

Action by H.D. Foste against the Standard Life & Accident Insurance Company of Detroit, MIch., for agent's commissions. Judgment for plaintiff, and defendant appeals. Reversed.

A.C. Emmons, for appellant.

W.T Muir, for respondent.

MOORE J.

This is an action by an agent of the defendant to recover money alleged to be due as commissions upon insurance premiums secured by him as such agent. The cause being at issue, a trial was had, at which evidence was introduced and admitted, over the defendant's objection which tended to show that an account had been stated between the parties; and, after the defendant's counsel had made his argument to the jury, the court permitted the plaintiff over the defendant's objection, to amend his complaint to conform the pleadings to the facts proved, by adding the following italicised words to the original complaint "The plaintiff above named alleges and complains that, during all the times hereinafter mentioned, the defendant was, and still is, a corporation, duly organized and carried on under the state of Michigan; that heretofore, to wit, during the years 1891 and 1892, the plaintiff, at the special instance and request of the defendant, performed for defendant labor and services as a special agent to solicit accident and life insurance for the defendant company, for which defendant promised and agreed to pay plaintiff a commission, to wit, a stipulated percentage in cash, namely, twenty per cent. on all moneys or premiums collected by defendant company on such insurance secured by plaintiff; that heretofore, on or about the 30th day of September, 1892, upon an account had and stated between plaintiff and defendant, there was due and owing to plaintiff the sum of two hundred and ninety-five and 8-100 dollars ($295.08) from defendant on such account of work and labor and services, as special agent, performed for the defendant, as above set forth, in commissions earned, over and above all credits, which services were performed at the request of the defendant, between the 31st day of July, 1891, and the 30th day of September, 1892, and which defendant promised and agreed to pay; that defendant has not paid the same, nor any part thereof." A verdict and judgment having been rendered for the plaintiff, the defendant appeals, and assigns in his notice, inter alia, the amendment of said pleadings, as ground for the reversal of said judgment.

The statute provides that the court, in furtherance of justice may, at any time before the cause is submitted, allow a pleading to be amended, when the amendment does not substantially change the cause of action, by conforming it to the facts proved. Hill's Code, § 101. The question presented is whether the amendment substituted another cause of action for that originally stated. An examination of the original complaint discloses an evident intention on the part of the pleader to declare upon an account for labor and services performed by the plaintiff for the defendant, but as amended, he has alleged a stated account between them. Courts should be liberal in allowing amendments, and when the cause of action is improperly set forth in the...