Patillo v. Allen-West Commission Co.

• Citation: 131 F. 680
• Decision Date: 08 August 1904
• Docket Number: 1,920.
• Parties: PATILLO et al. v. ALLEN-WEST COMMISSION CO.
• Court: U.S. Court of Appeals — Eighth Circuit

131 F. 680

PATILLO et al. v. ALLEN-WEST COMMISSION CO.

No. 1,920.

United States Court of Appeals, Eighth Circuit.

August 8, 1904

Syllabus by the Court

An amendment to a petition, which sets up no new cause of action of claim, and makes no new demand, but simply varies or expands the allegations in support of the cause of action already propounded, relates back to the commencement of the action, and the running of the statute against the claim so pleaded is arrested at that point. But an amendment which introduces a new or different cause of action, and makes a new or different demand, does not relate back to the beginning of the action, so as to stop the running of the statute, but is the equivalent of a fresh suit upon a new cause of action, and the statute continues to run until the amendment is filed; and this rule applies although the two causes of action arise out of the same transaction, and, by the practice of the state, a plaintiff is only required in his pleading to state the facts which constitute his cause of action.

A complaint stated facts from which the law raises the legal presumption of a promise to pay the balance of an account stated, and demanded judgment for that amount. An amendment was made to this complaint by adding to it an averment of a promise to pay the balance of the stated account. Held, this amendment presented no new cause of action, but simply expanded the allegations in support of the cause of action presented in the original complaint, and the amendment related back to the commencement of the action, where the running of the statute of limitations against the cause of action upon the account stated ceased.

An account stated, conceded to disclose some just indebtedness received and retained by the debtor without objection for an unreasonable time, estops him, in the absence of fraud or mistake, from denying his liability for all the items it contains, and raises the legal presumption of his promise to pay the balance. A consideration and legal liability for each item outside of the stated account is not essential to sustain a cause of action to recover its balance. The balance is one debt, regardless of the items, and a consideration for that debt is sufficient.

3. See Account Stated, vol. 1, Cent. Dig. Secs. 31, 42.

Where the evidence upon a question of fact is so clearly preponderant, or of such a conclusive character, that the court would be bound, in the exercise of a sound judicial discretion, to set aside a finding in opposition to it, it is its duty to withdraw the question from the jury and direct their finding.

J. W House (H. A. Tillett and M. House, on the brief), for plaintiffs in error.

J. M Moore (G. B. Rose, on the brief), for defendant in error.

Before SANBORN, VAN DEVANTER, and HOOK, Circuit Judges.

SANBORN Circuit Judge.

This is an action by the Allen-West Commission Company, the plaintiff below, a corporation, to recover of Smith, Patillo & Co., a partnership, a balance of an account current. This balance consists of three items-- one of $1,025, due September 1 1892; one of $1,198.75, due September 1, 1893; and one of $508, due September 1, 1894-- for commissions on cotton not shipped, at the rate of $1.25 per bale. At the trial below the jury allowed the first two items upon the ground that they were parts of a stated account between the parties and disallowed the third item, which is no longer in issue in this case.

The alleged error in the trial upon which the defendants place their chief reliance is that the cause of action upon the stated account arose in 1893, that it was barred by the statute of limitations in either three or five years thereafter, and that, although this action was commenced on April 25, 1895, the cause upon the stated account was first presented to the court below by an amendment to the complaint on July 15, 1903. This cause of action was undoubtedly barred by the statute of limitations if the effect of the amendment was not simply to vary or expand the allegations in support of the cause of action pleaded in the original complaint, but to introduce a new or different demand, not before presented in the pending suit. The rule of law upon this subject is that 'an amendment to a petition which sets up no new cause of action of claim and makes no new demand, but simply varies or expands the allegations in support of the cause of action already propounded, relates back to the commencement of the action, and the running of the statute against the claim so pleaded is arrested at that point. But an amendment which introduces a new or different cause of action, and makes a new or different demand, not before introduced or made in the pending suit, does not relate back to the beginning of the action, so as to stop the running of the statute, but is the equivalent of a fresh suit upon a new cause of action, and the statute continues to run until the amendment is filed. ' Whalen v. Gordon, 95 F. 305, 309, 37 C.C.A. 70, 74; Railway Co. v. Wyler, 158 U.S. 285, 289, 298, 15 Sup.Ct. 877, 39 L.Ed. 983; Railway Co. v. Cox, 145 U.S. 593, 601, 606, 12 Sup.Ct. 905, 36 L.Ed. 829; Sicard v. Davis, 6 Pet. 124, 8 L.Ed. 342; Van De Haar v. Van Domseler, 56 Iowa, 671, 676, 10 N.W. 227; Jacobs v. Insurance Co., 86 Iowa, 145, 53 N.W. 101; Buel v. Transfer Co., 45 Mo. 563; Scovill v. Glasner, 79 Mo. 449, 453; Crofford v. Cothran, 2 Sneed, 492; Railroad Co. v. Jones, 149 Ill. 361, 37 N.E. 247, 24 L.R.A. 141, 41 Am.St.Rep. 278; Eylenfeldt v. Steel Co., 165 Ill. 185, 46 N.E. 266; Railroad Co. v. Campbell, 170 Ill. 163, 167, 49 N.E. 314; Christy v. Farlin, 49 Mich. 319, 13 N.W. 607; Flatley v. Railroad Co., 9 Heisk. 230, 237; Buntin v. Railway Co. (C.C.) 41 F. 744, 749; Newton v. Allis, 12 Wis. 378; Railroad Co. v. Smith, 81 Ala. 229, 1 So. 763. The only question here presented, therefore, is whether the amendment merely expanded the allegations in support of a cause of action upon a stated account which was propounded in the original complaint, or introduced a new and different cause and made a new demand which was not before presented in this action.

This is the third appearance of this case in this court, and its history is interesting. In the original complaint the plaintiff alleged that in the early part of the year 1891 the defendants applied to it to advance moneys to them to be used in their business of purchasing cotton, and agreed to ship to it 100 bales of cotton for every $1,000 advanced to them in the spring and summer of each year, and that, if they failed to ship that amount, they would pay to the plaintiff $1.25 for each bale of the deficiency each year as long as they retained the use of the plaintiff's money; that during the year 1891 and during subsequent years the plaintiff transacted business with the defendants, and advanced money to them; that 'during the continuance of said business down to and including the year 1893 it furnished the defendants at stated periods, and at other times when requested, statements of the accounts between them, which were received without objection; that at the end of the year 1893 plaintiff furnished the defendants a statement of account showing a balance due it for advances made by the plaintiff to the defendants, and for commissions on cotton which defendants had theretofore failed to ship to plaintiff under and in accordance with the aforesaid agreement, whereupon shortly thereafter defendants, without objection paid plaintiff on said account the sum of $2,996.27, leaving a balance due plaintiff of $2,504.75, which sum, with interest thereon, and the further sum of $508.53, due for commission on 407 bales of cotton, which under the understanding and agreement between plaintiff and the defendants, as aforesaid, defendants should have shipped to plaintiff during the season of 1893 and 1894, and did not ship, is now due by the defendants of plaintiff. ' The defendants, by their answer, denied the agreement, admitted the advances and the receipt of the statements of account, averred objections to them, and that the agreement was usurious. There was a trial, and a verdict for the defendants. Thereupon the plaintiff removed the case to this court, where the judgment was reversed because the court below refused to charge the jury that, in view of the plaintiff's letters and statements of account, and the silence of the defendants, they could not dispute the item of $1,025 charged in the statement rendered them for commissions on cotton not sold. Allen-West Co. Co. v. Patillo, 90 F. 628, 630, 631, 632, 33 C.C.A. 194, 196, 197, 198. In the statement preceding the opinion then rendered will be found a copy of the complaint, and in the opinion a review of the letters, statements of account, and acts of the parties which led to this decision. At all the trials there have been introduced in evidence a statement of account rendered to the defendants on July 1, 1892, which contained the item, 'To Com. on 820 b/c at $1.25, 1025,' and disclosed a balance of $15,388.14 due from the defendants to the plaintiff, and a statement of account rendered December 20, 1893, which contained the item, 'To Commissions on 959 b/c, deficiency season 1892-93, should have shipped 1033 b/c, while you only shipped 74 b/c C 1.25 1198.75,' and presented a balance due from the defendants to the plaintiff of $5,364.58. In the first opinion rendered in this case this court said:

'As we view it, this was a factor's charge for commission under his contract with his principal, and related to the same subject-matter as the interest and other commissions; that it could not have been omitted from the account stated without thereby waiving the right to it, and binding the plaintiff to a stated account which did not include it; and when the defendants

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