Gambill v. Fox Typewriter Co.

• Decision Date: 07 November 1914
• Docket Number: 840
• Citation: 66 So. 655,190 Ala. 36
• Parties: GAMBILL v. FOX TYPEWRITER CO.
• Court: Alabama Supreme Court

66 So. 655

190 Ala. 36

GAMBILL v. FOX TYPEWRITER CO.

No. 840

Supreme Court of Alabama

November 7, 1914

Appeal from Circuit Court, Jefferson County; E.C. Crowe, Judge.

Action by the Fox Typewriter Company against A.A. Gambill, in trover and on the common counts, and for breach of contract of guaranty. Judgment for plaintiff, and defendant appeals. Affirmed.

C.B Powell, of Birmingham, for appellant.

Thompson & Thompson, of Birmingham, for appellee.

McCLELLAN J.

The original complaint, which was filed April 7, 1910, contained one count; and that was in trover. On June 23, 1913 plaintiff (appellee) prayed to be allowed to amend his complaint by the addition of counts 2 to 9, inclusive.

"The defendant [appellant] objected to the allowance of the amendment on the ground that the amendment set up cause of action that was a departure from the cause of action set up in the original complaint, and on the further ground that the said counts showed on their face that the matters complained of did not arise out of the same transaction or relate the same subject-matter and set up an entirely new cause of action in each count."

Like objection was made to the allowance of the amendment introducing count 10. The court overruled the objections whereupon exceptions were reserved.

Counts 2 to 5 and 9 of the amendment were the common counts. Aside from the dates appearing in these counts, there is nothing in any of them to indicate that a different subject-matter of a litigable character, between the same parties to the original count, was the basis of the claim asserted in the original count in trover. Actions ex delicto and actions ex contractu "arising out of the same transaction, or relating to the same subject-matter," may be joined. Code, § 5329. It is provided in Code, § 5367, that the court "must permit the amendment of the complaint *** by *** adding new counts or statements of the cause of action, which could have been included in the original complaint, *** and such amendment shall relate back to the commencement of the suit, and it shall not be held that such new counts or statements of the cause of action relate to new or other causes of action, so long as they refer to the same transaction, property and title and parties as the original, and, where this is not apparent on the averments of the pleading, it shall be a question of fact for the jury." Count 6 declares as upon an account stated and assumes to set forth an extended array of facts giving rise to the claim of liability as for an account stated. Count 7 is laid in the breach of a bond alleged to have been executed by the defendant, appellant. Count 8, as originally filed and as first amended, is not set out in the record. The last amendment, by way of additional averment, of count 8 appears in the record; but it is not possible to know from this record what the particular allegations of the whole of count 8 were after the last amendment thereof. Count 10 is the same as count 7, with the addition of an allegation not necessary to be stated at this time.

Under the statutes quoted, it is manifest that the court's action in allowing the amendment and in overruling the objections quoted from the bill of exceptions cannot be held for error. The basis of the several claims, asserted in the added counts, and in the original count in trover, was the same transaction--involved the same subject-matter. Inconsistency of claims for liability, asserted in distinct counts, is not, under our statutes, the test either of the right to amend by interposing additional counts or of the right to effect joinder in one action in distinct counts. If the cause of action asserted in distinct counts is related in transaction or subject-matter as the quoted statutes provide, no error can be predicated of the allowance of amendments or of overruling demurrer for misjoinder. The cause was tried by the court without jury.

Under the contract and bond set out in the record, Gambill's relation was that of a guarantor, not of surety, as appellant contends. Watkins Med. Co. v. Lovelady, 65 So. 52. Notwithstanding the employment of the term "surety," the substance and effect of the instruments forbid any other interpretation.

D.H Brown and appellee entered into a contract whereby Brown was to sell, and to have the exclusive right to sell, typewriters, etc., sold him by the appellee, in certain parts of Alabama. A written contract was signed in Birmingham by D.H. Brown on December 13, 1907, which was forwarded to appellee at its place of business in the state of Michigan. It is manifest that the perfection of an engagement between the parties contemplated the execution of the instrument by the appellee. In the instrument thus signed by Brown it was provided that Brown should make a bond...