Goddard v. Williamson's Adm'r

• Decision Date: 31 October 1880
• Citation: 72 Mo. 131
• Parties: GODDARD, Plaintiff in Error, v. WILLIAMSON'S ADMINISTRATOR.
• Court: Missouri Supreme Court

72 Mo. 131

GODDARD, Plaintiff in Error,

v.WILLIAMSON'S ADMINISTRATOR.

Supreme Court of Missouri.

October Term, 1880.

Error to Cole Circuit Court.--HON. G. W. MILLER, Judge.

REVERSED.

A. W. Anthony for plaintiff in error.

Draffin & Williams for defendant in error.

HENRY, J.

This suit originated in the probate court of Morgan county, August 3rd, 1877, as a claim against the estate of the intestate presented by Goddard. The account was for taxes paid by plaintiff for the deceased at his request in said county, for the years 1856 to 1859, inclusive, with interest, balance due on two notes, amount paid for Williamson to J. P. Ross, and amount of county warrants belonging to plaintiff, which were converted by deceased to his own use, aggregating $1,966.58, with credits to the amount of $14.95, the balance of which, $1,951,63, was claimed against the estate. The plaintiff had judgment in the probate court for $837, being the balance due on the two notes, dated respectively, May 21st, 1858, and August 23rd, 1859, payable one day after date, the latter for $150, the other for $200, each bearing ten per cent interest from date, with credits upon the larger note as follows: $20 July 4th, 1865, $35 May 27th, 1869, and on the smaller, $100 October 12th, 1872. Plaintiff appealed from the judgment of the probate court to the circuit court of Morgan county, from which a change of venue was taken to the circuit court of Cole county, and on a trial of the cause, in consequence of adverse rulings of the court, plaintiff took a non-suit with leave, etc., and has duly prosecuted an appeal to this court.

1. AMENDMENT.

On the trial, plaintiff asked leave to file an amended statement of his cause of action, which was refused, and of this he complains. The proposed amendment did not change the cause of action, but simply consisted of additional credits given to the estate which reduced the demand from $1,951.65 to $1,695. The additional credits tended to show mutual dealings and accounts between the parties, running through all the years from 1861 to 1874, inclusive, and if established, would have avoided the plea of the statute of limitations. The application to file an amended statement, was accompanied by plaintiff's affidavit to the effect that after filing his original account and affidavit he had examined the books of said decedent kept by him in his life-time in the matter of account between plaintiff and deceased, extending continuously from the year 1857 to 1874, inclusive, showing that the estate was entitled to various credits which plaintiff had omitted to place upon the original account, by reason of not having had access to said books. The proposed amended statement was of the same cause of action tried before the probate court. It was not a change of the cause of action but only additional credits given to which the estate was entitled. Amendments are favored in furtherance...