Foster-Holcomb Investment Co. v. Little Rock Publishing Co.

• Decision Date: 23 January 1922
• Docket Number: 104
• Citation: 236 S.W. 597,151 Ark. 449
• Parties: FOSTER-HOLCOMB INVESTMENT COMPANY v. LITTLE ROCK PUBLISHING COMPANY
• Court: Arkansas Supreme Court

236 S.W. 597

151 Ark. 449

FOSTER-HOLCOMB INVESTMENT COMPANY v. LITTLE ROCK PUBLISHING COMPANY

No. 104

Supreme Court of Arkansas

January 23, 1922

Appeal from Hot Spring Circuit Court; W. H. Evans, Judge; affirmed.

Judgment affirmed.

Wm R. Duffie, for appellant.

The plea in abatement and motion to dismiss should have been sustained. Open account are barred in three years. C. & M Digest, § 6950.

The motion to strike the amendment and plea of statute of limitations should have been sustained. 97 Ark. 19; 64 Ark 345; 157 Ill. 218; 51 Ill.App. 457; 59 Ark. 441; 67 Mo. 420; 56 Kan. 507; 65 N.W. 583; 95 Tenn. 612; 34 S.W. 381; 63 N.W. 506.

The deposition of J. F. Keeley as to the execution of the contract was secondary evidence, and should have been excluded. The newspaper containing the advertisement was the best evidence. Jones on Evidence (Civil Cases) p. 244.

Exhibits to pleadings in equity, control the pleadings. 91 Ark. 400. The contents of exhibits to a complaint in equity, will control the allegations of the complaint. 94 Ark. 572; 99 Ark. 218; 104 Ark. 459.

In an action founded upon a written instrument, the exhibits are a part of the pleadings. 85 Ark. 223.

H. B. Means and John L. McClellan, for appellee.

There was no error in allowing the plaintiff to amend its complaint. C. & M. Digest, § 1229. See also, 78 Ark. 350; 94 Ark. 347.

OPINION

SMITH, J.

This suit originated in the court of a justice of the peace in Hot Spring County by the filing of a complaint which alleged that "the plaintiff alleges that the Arkansas Democrat is a corporation engaged in printing and publishing a newspaper at Little Rock in the State of Arkansas, and is doing business under the laws of said State." It was further alleged that the defendant, a co-partnership composed of J. B. Foster and Blaine Holcomb, was indebted to the plaintiff in the sum of $ 50, as shown by an account attached to the complaint and marked Exhibit "A" and made a part thereof. The exhibit reads as follows:

"Little Rock, Ark., October 11, 1919.

"Foster-Holcomb Investment Co.

"To Little Rock Publishing Co., Publishers Arkansas Democrat, Dr.

"To balance as per statement rendered for advertising during Oct. 16, 1916, to publishing advertisement in Arkansas on Wheels edition,__$ 50.00."

Summons was issued October 14, 1919, which was two days before the cause of action would have been barred by the statute of limitations.

There was a judgment in the justice court for the plaintiff, and the defendant has appealed.

On July 19, 1920, the defendant filed in the circuit court a plea in abatement and a motion to dismiss the action because the name, "Arkansas Democrat," was not a name under which a suit could be prosecuted. On the same day the Arkansas Democrat filed an amendment to the complaint, alleging that it was a newspaper owned and controlled by the Little Rock Publishing Company, a corporation, and the name of that corporation was substituted as plaintiff. Thereupon the defendant filed a motion to strike out the amendment to the complaint, because the three-years statute of limitations had run, and because the amount sued for was not within the original jurisdiction of the circuit court. This motion was overruled, as was also a demurrer to the jurisdiction of the circuit court.

There was a trial and verdict for the amount sued for, and judgment was rendered thereon, from which is this appeal.

The plaintiff's case was made by the deposition of one J. F. Keeley, who testified that the sum sued for was due for advertising in a special issue of the Arkansas Democrat, a daily newspaper published in the city of Little Rock, and that "every condition and promise was lived up to in every way" by the publishing company. It was objected that this was secondary evidence, and should have been excluded as such. We do not think the objection is well taken. It is true the witness did not produce a copy of the paper containing the advertisement, but there could be no objection to the witness stating that the advertisement was published, if the witness knew that such was the fact.

We think the court properly permitted the amendment to the complaint. Our statute on amendments is very broad, and has been given a very liberal construction by the courts to effectuate its manifest purpose, that is, that litigation may be tried upon its merits. This statute is as follows: "The court may, at any time, in furtherance of justice, and on such terms as may be proper, amend any pleadings or proceedings by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case; or, when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved." Crawford & Moses' Digest, § 1239.

Among numerous other cases construing this statute is the case of Midland Valley Rd. Co. v. Ennis, 109 Ark 206, 159 S.W. 214, where we said: "Under this section the court may, in its discretion,...