Lycoming Fire Ins. Co. v. Billings

• Decision Date: 22 April 1889
• Citation: 17 A. 715,61 Vt. 310
• Parties: LYCOMING FIRE INSURANCE CO. v. B. & D. C BILLINGS
• Court: Vermont Supreme Court

17 A. 715

61 Vt. 310

LYCOMING FIRE INSURANCE CO. v. B. & D. C BILLINGS

Supreme Court of Vermont

April 22, 1889

JANUARY TERM, 1889.

This was an action in assumpsit to recover certain assessments on a premium note, given by the defendants to the plaintiff upon the issuing to them by it of a policy of insurance. The motion on which the exceptions arose was heard at the September Term of the Rutland County Court, 1888, Royce, Ch J., presiding. The plaintiff excepted and the nature of the question raised appears in the opinion. The exceptions were passed to the Supreme Court for hearing and determination before final judgment, under R. L. s. 1390.

Judgment reversed and cause remanded.

C W. Porter and P. R. Kendall, for the plaintiff.

OPINION

ROWELL

The original declaration counted upon an insurance premium note for $ 350, dated July 13, 1877, for value received in policy No. 109692, issued by plaintiff to defendants, payable at such times as plaintiff's directors might require agreeably to its act of incorporation. The declaration then went on and made the necessary allegations for the recovery of an assessment of 20 per cent on the amount of the note. The case standing for trial, plaintiff moved for leave to amend the declaration by filing new counts, which it presented, upon the note originally declared upon, describing it as dated June 13, 1877, and as originally given for $ 600 but afterwards, and before the assessment sought to be recovered, reduced by indorsements to $ 350, but otherwise declaring as in the original declaration; and offered to prove that the notes were identical. But the court refused to hear the proof, and as matter of law and not of discretion overruled the motion, on the ground that the amendment asked for would change the cause of action.

In this there was error. Here was something on the record to amend by, and the court should have inquired whether in point of fact the proposed new counts declared upon the same cause of action as the original declaration; and in the prosecution of this inquiry it would not have been confined to an inspection of the papers merely, but could have gone outside of them if necessary in order to satisfy itself how the fact was. Hill v. Carpenter, 34 Vt. 535; Boyd v. Bartlett, 36 Vt. 9.

If the pleader intends to declare upon one cause of action, but in point of fact declares upon another; as, if he intends to declare upon one...