Joyner v. Early
| Decision Date | 12 September 1905 |
| Citation | 139 N.C. 49,51 S.E. 778 |
| Court | North Carolina Supreme Court |
| Parties | JOYNER. v. EARLY. |
1. pleading—Amendment.
Where, in replevin for a mule, plaintiff simply alleged ownership and wrongful detention by defendant, but offered evidence that defendant obtained possession by false representations, it was not error to permit plaintiff, after motion for nonsuit, to amend his complaint to conform to the proof by setting up allegations of fraud and deceit, on payment of the costs.
2. Exchange of Property—Fraud—Repudiation—Remedies.
Where defendant obtained possession of plaintiff's mule in a trade by false and deceitful representations, plaintiff could sue for damages for breach of the alleged warranty, or repudiate the trade and sue to recover the specified property.
3. Appeal—Discretion—Review.
The allowance of a trial amendment to conform to the proof is a matter of discretion, and not reviewable.
4. Evidence—Declarations—Hearsay.
In replevin to recover a mule, declarations of a third person to defendant in plaintiff's absence were properly excluded.
[Ed. Note.—For cases in point, see vol. 20, Cent. Dig. Evidence, §§ 1174, 1175, 1178.]
Appeal from Superior Court, Hertford County; E. B. Jones, Judge.
Action by W. M. Joyner against J. C. Early. From a judgment in favor of plaintiff, defendant appeals. Affirmed.
Francis D. Winston and John E. Vann, for appellant.
Winborne & Lawrence, for appellee.
The plaintiff sued out claim and delivery proceedings for the mule, and filed the ordinary complaint, alleging simply ownership upon the part of the plaintiff and wrongful detention by the defendant. On the trial the plaintiff offered evidence tending to prove that the defendant obtained possession of the mule in a trade with the plaintiff by false, fraudulent, and deceitful representations. At the conclusion of the plaintiff's evidence the defendant moved to nonsuit. The court denied the motion and permitted the plaintiff to amend his complaint by setting out the allegations of fraud, misrepresentation, and deceit, upon the payment of costs, "and the trial proceeded without objection by the defendant." In his brief the defendant reviews the ruling of the court. Waiving the fact that the defendant did notexcept to the allowance of the amendment, we sustain the ruling of the judge below. It was in no sense the introduction of a new cause of action, nor is it prohibited in Ely v. Early, 94 N. C. 1. Tbe mule was the property in controversy. The amended complaint simply set out in full the allegations of fraud and deceit
Under the facts testified to by the plaintiff he had the right to sue for damages for the alleged...
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Currie v. Malloy
...an enlargement or amplification of the cause of action already stated, and not the setting up of a new cause of action. Joyner v. Early, 139 N.C. 49, 51 S.E. 778; v. Trust Co., 151 N.C. 196, 65 S.E. 918; Pritchard v. Railroad, 166 N.C. 535, 82 S.E. 875; 31 Cyc. 409, 411. A liberal construct......
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Alley v. Howell
...that there must be allegation as well as proof. The plaintiffs could readily have cured the defect by asking to amend (Joyner v. Early, 139 N. C. 49, 51 S. E. 778), and if that were refused in the discretion of the court, the plaintiffs could have taken a nonsuit and have brought a new acti......
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Bros v. Lane & Co
...have reference by relation to the original institution of the suit Renn v. Railway (at present term) 86 S. E. 964; Joyner v. Early, 139 N. C. 48, 51 S. E. 778; Lassiter v. Railroad, 136 N. C. 89, 48 S. E. 642, 1 Ann. Cas. 456; Nims v. Blythe, 127 N. C. 325, 37 S. E. 455; Parker, Adm'r, v. H......
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Norfolk & S. R. R. v. Dill
... ... relation to the original institution of the ... suit"--citing, among other cases, Renn v ... Railway, 86 S.E. 964; Joyner v. Early, 139 N.C ... 49, 51 S.E. 778; Lassiter v. Railroad, 136 N.C. 89, ... 48 S.E. 642, 1 Ann. Cas. 456; Nims v. Blythe, 127 ... N.C. 325, 37 ... ...