Richardson v. Investment Co.

• Decision Date: 28 February 1928
• Citation: 264 P. 458,124 Or. 569
• Parties: RICHARDSON v. INVESTMENT CO.
• Court: Oregon Supreme Court

264 P. 458

124 Or. 569

RICHARDSON v. INVESTMENT CO.

Supreme Court of Oregon

February 28, 1928

Department 2.

Appeal from Circuit Court, Multnomah County; John H. Stevenson Judge.

Action by A. R. Richardson against the Investment Company. Judgment for plaintiff, and defendant appeals. Modified and rendered.

Albert H. Tanner, of Portland (John Van Zante, of Portland, on the brief), for appellant.

Walter C. Winslow, of Salem, for respondent.

BELT J.

Plaintiff in November, 1909, commenced an action to recover upon an express contract the amount alleged to be due for constructing a cement sidewalk. From the judgment rendered in favor of plaintiff, defendant appealed, and the cause was reversed and remanded for a new trial, for the reason that the evidence failed to show a substantial compliance with the contract. In the opinion of the court it was suggested that since the sidewalk was of value to the defendant, although it did not conform to the specifications agreed on between the parties, plaintiff might recover in an action on quantum meruit. 66 Or. 353, 133 P. 773.

After the cause was remanded, plaintiff, on March 10, 1914, filed in the circuit court a motion for leave to file his amended complaint. No action was ever taken with reference to this motion until June 19, 1926, when plaintiff caused the same to be brought on for hearing. We deem it unnecessary to discuss the various reasons assigned for the unusual delay in disposing of this motion. Suffice it to say the matter was still pending, and no action was taken by defendant to have it dismissed for want of prosecution. The motion to file an amended complaint refers to such pleading as being attached thereto, but it is conceded the pleading does not appear among the files in the cause.

The circuit court, in the exercise of its discretion, allowed plaintiff to file an amended complaint, in which plaintiff seeks to recover the reasonable value of the sidewalk. Defendant thereupon demurred to the amended complaint, upon the ground that the action was barred by the statute of limitations. After the overruling of this demurrer, defendant refused further to plead, and judgment was entered in favor of plaintiff for $1,068.85 together with interest thereon at the legal rate from date of last payment on account. From this judgment, defendant appeals.

Is plaintiff's action barred by the statute of limitations? The answer to this question hinges upon whether the amended complaint sets forth a new cause of action. If it does not, the filing of such pleading relates to the time when the action on express contract was commenced. If the amended complaint states a new cause of action, it is equivalent to the commencement of a separate and independent action, and, as such, would clearly be barred by the statute. 17 R. C. L. 815; also see extensive notes in 3 L. R. A. (N. S.) 259, 33 L. R. A. (N. S.) 196, and 47 L. R. A. (N. S.) 932.

Did plaintiff introduce a new cause of action in changing from one upon express contract to one upon quantum meruit? We answer in the negative. While there are authorities to the contrary, we think the better reasoned cases hold that the change is only that of form. Cox v. McLaughlin, 76 Cal. 60, 18 P. 100, 9 Am. St. Rep. 164; Turner & Dahnken v. Bauer, 28 Cal.App. 311, 152 P. 308; Wardrobe v. Miller, 53 Cal.App. 370, 200 P. 77. In 31 Cyc. 430, it is said:

"Except in jurisdictions where it is held that no amendments are permissible which change the form of the action, it is very generally

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