Patrick v. Whitely

• Decision Date: 27 May 1905
• Citation: 87 S.W. 1179
• Parties: PATRICK et al. v. WHITELY.
• Court: Arkansas Supreme Court

Page 1179

87 S.W. 1179

PATRICK et al. v. WHITELY.

Supreme Court of Arkansas.

May 27, 1905.

Appeal from Circuit Court, Perry County; Edward W. Winfield, Judge.

Action by J. H. Whitely against W. H. Patrick and others. From a judgment for plaintiff, defendant Patrick appeals. Reversed.

Sellers & Sellers, for appellant.

BATTLE, J.

This action was commenced on the 27th of May, 1902, by J. H. Whitely against W. H. Patrick, J. F. Cooper, and Arthur Sewell, by filing the following complaint, and suing out summons thereon:

"Perry Circuit Court.

"J. H. Whitely, Plaintiff, v. W. H. Patrick, J. F. Cooper, and Arthur Sewell, Defendants.

"The plaintiff states that the defendants at the time of filing this complaint, were partners. That they are indebted to him in the sum of $636.96 for work and labor performed and timber furnished them during the year 1902. A bill of particulars is herewith filed, marked Exhibit A to this complaint. That the said debt is now due and unpaid, wherefore he prays judgment for $636.96 and for other relief.

"Albert W. Rison, Attorney for Plaintiff."

Patrick specifically denied each and every allegation in the complaint.

The evidence adduced in the trial in this action tended to prove that Cooper and Baker owned and operated a sawmill, and that Baker sold his interest in the sawmill to Arthur Sewell, and that J. H. Whitely furnished them with logs to be sawed. Patrick purchased the lumber sawed, and upon the orders of the owners of the mill paid out of the purchase money the wages of the mill hands and Whitely for the logs. The caption of the bill of particulars filed with the complaint is as follows: "Cooper & Baker, in account with J. H. Whitely, for labor and logs supplied at their mill. W. H. Patrick, Paymaster." After the commencement of this action Patrick purchased the mill, and agreed with the vendors to pay their indebtedness.

After all the evidence had been adduced, plaintiff, over the objection of the defendants, was allowed to amend his complaint as follows:

"The plaintiff, J. H. Whitely, states that the defendants, W. H. Patrick, Frank Cooper, and Arthur Sewell, are jointly and severally indebted to him in the sum of $636.96 for work, labor, and timber furnished to defendants at their request, an itemized account of which is field with the complaint herein. That the sum is due and unpaid, wherefore he demands judgment against defendants for said sum of $636.96.

                     "G. W. Bruce, A. W. Rison
                              "Attorneys for Plaintiff."
                

Among other instructions, the court gave, over the objections of the defendants, the following:

"The jury are instructed that if they find from the evidence that the defendants, or any of them, owe the plaintiff anything, they will find for him in such sum, and indicate by their verdict against which defendants they find the amount, if any, and indicate them by name."

The jury returned a verdict in favor of the plaintiff against all the defendants. Judgment was rendered accordingly, and Patrick appealed.

Section 6145, Kirby's Digest, provides: "The court may, at any time, in furtherance of justice, and on such terms as may be proper, amend any pleadings, * * * when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved."

Under statutes like this it has been uniformly held that no amendment can be allowed after the commencement of a trial which introduces into the case a new cause of action. It has been so held by this court. As said by the New York Court of Appeals: "Pleading...