Gilmour v. Longmire, 28060.

• Decision Date: 29 September 1941
• Docket Number: 28060.
• Court: Washington Supreme Court
• Parties: GILMOUR v. LONGMIRE.

117 P.2d 187

10 Wn.2d 511

GILMOUR v. LONGMIRE.

No. 28060.

Supreme Court of Washington

September 29, 1941

Department 1.

Action by John L. Gilmour, doing business as Gilmour & Gilmour against E. E. Longmire on a note. From judgment dismissing the action, plaintiff appeals.

Affirmed.

Appeal from Superior Court, Kittitas County; Arthur McGuire, judge.

Chester R. Thomas, of Ellensburg, for appellant.

E. K Brown, of Ellensburg, for respondent.

DRIVER, Justice.

Plaintiff filed his complaint on November 16, 1939. The defendant was erroneously designated therein as 'L. L. Longmire,' instead of 'E. E. Longmire,' and, in order to correct the mistake, the plaintiff filed an amended complaint on the following day. With the exception of the defendant's initials and the date of verification, the two pleadings were identical.

In his amended complaint, the plaintiff alleged: The he had been doing business under a trade name and had filed a certificate thereof, as required by law; 'That on or about the 3rd day of January, 1935, at Ellensburg in the said County of Kittitas, the defendant made his promissory note in writing whereby at the date thereof he promised to pay to the plaintiff the sum of Four Hundred Thirty-five Dollars and Ninety-seven ($435.97) cents one year after date, with interest at the rate of six per cent per annum from date, for value received and then and there delivered the same to the plaintiff'.

That during the year 1936, the note had been accidentally lost by the plaintiff, or by his attorney, or it had been stolen from one or the other of them; that the note was in default, no payment having been made thereon, except the sum of one hundred dollars, which the defendant paid on December 2 1936; that the note provided for the payment of a reasonable attorney's fee in case of suit thereon, and that seventy-five dollars was a reasonable fee for the court to allow the plaintiff. The prayer was for judgment against the defendant in a stated sum, together with interest, attorney's fee, and costs.

On December 6, 1939, the defendant served and filed an answer in which he denied all the allegations of the complaint with reference to the making and loss of the note, admitted 'that on December 1, 1936 he paid to plaintiff $100.00,' but alleged 'that he paid said sum of $100.00 upon an open account which defendant then and there owed to plaintiff but which said open account is now barred by the Statute of Limitations.'

The cause was tried to the court without a jury on January 11, 1940. Plaintiff testified that, in the fall of 1934 the defendant owed him a grocery bill of $435.97, and that he turned the account over to an attorney for collection; that thereafter the defendant came into his grocery store and gave him a check for one hundred dollars, 'stating that he wished said amount credited upon his note'; and that the plaintiff accepted the payment and gave the defendant a receipt.

The attorney (he was not of counsel for the plaintiff in the instant case) testified that, when the account was placed with him for collection, he tried to persuade the defendant to sign a promissory note for the amount of the account, but to no avail; that, on each of two different occasions, he had drafted a note and asked the defendant to sign it, but the latter had declined. Plaintiff offered no other proof of the making of the note.

The plaintiff next offered his books of account to prove that the defendant was indebted to him, but the defendant objected, and the objection was sustained. The plaintiff then moved for leave to amend the complaint so as to set up a cause of action on the open account. The court denied the motion. At the conclusion of plaintiff's case, judgment was entered dismissing the action; and the plaintiff appealed.

The sole question for determination is whether the appellant should have been permitted to amend his complaint and proceed with an action on the open account.

The last payment was made on the account on December 2, 1936, and it was therefore barred by the three-year statute of limitations, chapter 28, Laws of 1923, p. 70, § 1, now Rem. Rev. Stat. (Sup.), § 159, Before the answer was served or leave to amend was requested, although it was not barred when the action was commenced on November 16, 1939. If appellant is to prevail in this case, it must be by virtue of some specific statute or rule of court.

'In the absence of statutory authorization, and in many jurisdictions because of express statutory restrictions, the generally accepted rule is that an amendment can not be permitted which sets up a new and distinct cause of action, or which substantially changes the claim or cause of action set out in the original pleadings.' 49 C.J. 507, § 671.

This court subscribed to the foregoing rule in two cases which were decided prior to the effective date of any of the rules of practice adopted by the court pursuant to chapter 118, Laws of 1925, Ex.Sess. p. 187, namely, Heitmiller v. Prall, 108 Wash. 382, 184 P. 334; and Martin v. Bateman, 111 Wash. 634, 191 P. 759.

It is appellant's contention that he was entitled to amend under the provisions of Rule VI, Rules of Practice, 193 Wash. 42-a, Rem.Rev.Stat. (Sup.), § 308-6. The pertinent provisions of the cited rule are:

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