King v. Giblin

• Decision Date: 11 June 1927
• Docket Number: 1355,1356
• Citation: 256 P. 1035,36 Wyo. 448
• Parties: KING v. GIBLIN ET AL. [*] RAFFERTY v. SAME
• Court: Wyoming Supreme Court

256 P. 1035

36 Wyo. 448

KING v. GIBLIN ET AL. ^[*]

RAFFERTY v. SAME

Nos. 1355, 1356

Supreme Court of Wyoming

June 11, 1927

APPEAL from District Court, Natrona County; BRYANT S. CROMER, Judge.

Action by W. J. King against J. J. Giblin, and another, doing business as the Henning Brokerage Company, and action by H J. Rafferty against the same defendants. From judgments of dismissal, plaintiffs appeal. Cases consolidated on appeal.

Reversed and Remanded.

Hal Curran, for appellants.

The court below misconceived the provision of 5677 C. S. as to what may be stricken from pleadings: there is a difference in the meaning of the words "immaterial" and "irrelevant"; Dunlap v. Kelly, 78 S.W 664. A motion to strike must indicate the parts to be stricken; 1 Bates' New Pl. & Pr. 423; White v Allen, 30 Ore. 103; Palmer v. Bank, 59 Nebr. 412. Partners are jointly and severally liable; 4184-4186 C. S. A motion to strike cannot be directed to conclusions of law; a motion to make more definite is proper; Schrock & Schneider v. Cleveland, 29 O. S. 499. The trial court erred in sustaining the second motion to strike; Schneider v. Brown, (Cal.) 24 P. 715; Dougall v. Schulenberg, 35 P. 636. A new cause of action may be substituted by amendment; Deyo v. Morss, 144 N.Y. 216, 39 N.E. 81; Nelson v. Bank, 36 So. 707. The cause of action may be changed; Norman v. Asylum, 70 S.W. 189; Meinshausen v. Brewing Co., 113 N.W. 408; 3 L. R. A. (N. S.) 307. Our amendment statutes are 5704 and 5707 C. S.; amendments may be made to conform with the proofs at any time before judgment; Foste v. Standard, (Ore.) 38 P. 617; Angell v. Pruyn, 85 N.W. 258; Lellman v. Mills, 15 Wyo. 149; Lumber Co. v. Walker, 152 S.W. 1005. A cause, based upon the common law, may be changed to a statutory action for death; Boston & M. R. Co. v. Hurd, 108 F. 116. A new cause of action may be introduced by amendment, if it correspond in character with the original count in a kindred cause, admitting the same pleading and defense, which might have been included in the original pleading; Tierman v. Woodruff, 5 McLean 135; Keenan v. Co., 69 P. 112; Boyle v. Gordon, (Kan.) 17 P. 857; Bates New Pl. & Pr., Vol. 1, Page 543. A pleading, though imperfect and defective in form, should not be stricken, though subject to a motion to require more definite and certain statement; Pomeroy's Remedies and Remedial Rights, Sec. 549; Cone v. Ivinson, 4 Wyo. 203, at 226, 227; Summers v. Ins. Co., 12 Wyo. 380; Anderson v. Rasmussen, 5 Wyo. 44. In Mau v. Stoner, 15 Wyo. 121, an amendment permitting a wholly different defense was allowed; also Lellman v. Mills, 15 Wyo. 150; Fidelity & Guaranty Co. v. Parker, 20 Wyo. 55; Bissinger & Co. v. Weiss, 27 Wyo. 268; Bamforth v. Ihmsen, 28 Wyo. 282; Bank v. Sorenson, 30 Wyo. 142; Finley v. Pew, 28 Wyo. 342; Houtz v. Commissioners, 11 Wyo. 176. Other cases regarding a liberal rule of amendment are: Evans v. Co., 21 Wyo. 184; Norton's Est. v. McAlister, 22 Colo.App. 293, 123 P. 963. The court erred in dismissing appellant's petition with prejudice; Mulhern v. Ry. Co., 2 Wyo. 465; Jones v. Ry. Co., 23 Wyo. 157; Bader v. Mills & Baker Co., 28 Wyo. 192.

E. H. Foster and W. J. Wehrli, for respondents.

The consolidation of cases numbered 1355 and 1356, for determinination on appeal, both being identical on the facts and law, has been agreed upon by the parties; so that the briefs filed, in this case, shall be adopted in case 1355; the plaintiff introduced a new cause of action by way of amendment; 31 Cyc. 415. This is not permissible; Lamar v. Lamar, Taylor and Riley Drug Co., 118 Ga. 850, 45 S.E. 671; Cos v. Henry, 113 Ga. 259, 38 S.E. 856; Booth v. Packing Co., 105 S.W. 46; Ry. Co. v. Ryan, 170 S.W. 858; Long v. Hubbard, (Kan.) 50 P. 968; Lumber Co. v. Water Co., 94 Tex. 456, 61 S.W. 707. The amended petition, in this case, substituted an entirely different cause of action.

Before POTTER, Justice, ILSLEY and RINER, District Judges. POTTER, Justice, and ILSLEY, District Judge, concur.

OPINION

RINER, District Judge.

It has been agreed by counsel for the parties to these two cases before this court on direct appeal that the facts and law governing both are substantially the same. Briefs were filed in No. 1356, King v. Giblin et al., and it was stipulated that they should be adopted as the briefs of the parties in Case No. 1355, Rafferty v. Giblin, et al. An examination of the several records discloses that counsel have accurately presented the situation in these cases and both can and will be disposed of by this opinion.

For convenience Case No. 1356, supra, in which the briefs were filed, will be herein considered.

King, plaintiff and appellant, subsequently mentioned herein as the "plaintiff," filed his petition in the district court of Natrona County against J. J. Giblin and John A. Hawlett as co-partners doing business as the Henning Brokerage Company, defendants and respondents, hereafter referred to as the "defendants." The petition was drawn with its paragraphs numbered One to Eight, inclusive. The first four paragraphs allege the existence of the partnership of defendants, their principal place of business as in Casper, and the several places of residence of the parties plaintiff and defendants. Paragraph 5 reads as follows:

"That the defendants and each of them are indebted to this plaintiff in the sum of $ 3350.00, which sum of money was had and received by the defendants and each of them from this plaintiff for the purpose of purchasing one hundred shares of Sinclair Cons. Stock. That said sum of money was paid and delivered over to the defendants and each of them as follows:

March 16, 1920

$ 1000.00

April 21, 1920

500.00

May 1, 1920

500.00

May 21, 1920

350.00

August 3, 1920

600.00

December 21, 1920

400.00."

Paragraph 6 and 7 allege that the defendants did not purchase the stock, and never tendered it although demand was made of them for it prior to July 15, 1920, by plaintiff; that on December 30th, 1920, there was a balance of $ 1139.34 due at the current market price on said stock, which amount was tendered defendants and the stock demanded of them by plaintiff; and that the defendants failed to deliver the stock on such demand.

Paragraph 8 reads as follows:

"That on the 15th day of July, A. D. 1922, plaintiff demanded from the defendants and each of them the full sum of $ 3350.00, the amount had and received by defendants and each of them. Defendants have to date failed, neglected and refused to pay plaintiff said sum. That said sum remains due and wholly unpaid, although due and repeated demand has been made therefor."

Prayer is made for judgment in the sum of $ 3350.00 with interest from January 21, 1921.

Defendants appeared and moved to strike out nearly all of said petition paragraph by paragraph on the ground that the allegations were "immaterial and irrelevant," and also "conclusions of law and not of fact." The motion was sustained by the trial court but leave was given plaintiff to file an amended petition. Plaintiff did so and thus waived whatever error was committed by the court in sustaining the motion aforesaid.

See Arp & Hammond Hdw. Co. v. Hammond, etc. Co., 33 Wyo. 77 at 92, 236 P. 1033; Garanflo v. Cooley, 33 Kan. 137, 5 P. 766; Ott v. Elmore, 67 Kan. 853, 73 P. 898; Robertson v. Christensen, 90 Kan. 555, 135 P. 567, at 568; Town v. Doob, (Ind.) 52 N.E. 198; Martin v. Capital etc. Co., 85 Iowa 643, 52 N.W. 534.

The amended petition also had its paragraphs numbered One to Eight inclusive. Paragraphs 1 and 2 allege the co-partnership of the defendants in the business of stockbrokerage. The third paragraph reads:

"That on or about the 16th day of March, 1920, plaintiff herein entered into verbal contract with the said partnership, by the terms of which plaintiff was to pay the said partnership the sum of $ 1000.00 and said partnership was to purchase and hold for plaintiff One hundred shares of Sinclair Consolidated stock, that plaintiff was thereafter to pay said partnership such sum or sums as either of said co-partners should demand and require for their protection in the event the market price of said stock should fall below the market price of said stock on the said 16th day of March 1920; that said co-partnership was to have certificates evidencing 100 shares of said stock for delivery to plaintiff at any time plaintiff paid the balance due and that said stock was not to be disposed of unless plaintiff failed or neglected to pay such sum or sums as said co-partnership would require and demand as above set out."

The fourth, fifth and sixth paragraphs allege performance by plaintiff of all the terms and conditions of the contract, and that at the request of the defendants and pursuant to the contract plaintiff paid to the defendants at various times sums of money totalling $ 3350.00; that defendants received this amount but never purchased the stock; that they converted said sum to their own use and refused to deliver the stock; and that they failed to keep any of the terms of said verbal contract with plaintiff.

Paragraph No. 7, after setting out that on the 30th day of December, 1920, there was tendered by plaintiff to defendants the sum of $ 1139.34, and again on June 30th, 1921, the sum of $ 1197.83, these amounts being the balance at those times due on said stock's purchase price, and that defendants refused to deliver said stock, alleges:

"That the said plaintiff did then and there demand the sum of $ 3350.00 from the said co-partnership, which sum the said co-partnership then and there promised and agreed to pay."

Paragraph No. 8 reads verbatim:

"That the said co-partners, confirming said promise, did on the 1st day of November 1921, and again on the 15th day of July 1922, promise...