Rowland Co v. H

• Decision Date: 06 June 1921
• Docket Number: (No. 12053.)
• Citation: 27 Ga.App. 107,107 S.E. 602
• Parties: ROWLAND CO. v. H. V . KELL CO.
• Court: Georgia Court of Appeals

27 Ga.App. 107

107 S.E. 602

ROWLAND CO.

v.H. V . KELL CO.

(No. 12053.)

Court of Appeals of Georgia,

Division No. 2.

June 6, 1921.

(Syllabus by the Court.)

Jenkins, P. J., dissenting.

Error from Superior Court, Clarke County; Andrew J. Cobb, Judge.

Action by the H. V. Kell Company against the Rowland Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Green & Michael, of Athens, for plaintiff in error.

E. R. Clarkson, of Griffin, and Shackelford & Meadow, of Athens, for defendant in error.

HILL, J. The suit as originally brought was for damages for an alleged breach by the vendee of a contract of purchase. The seller, proceeding under section 4131 of the Civil Code (1910), asked for damages under the first method of procedure as prescribed by that section, for the amount of the difference between the contract price and the market price of the goods at the time and place for delivery. The evidence disclosed that after the alleged breach by the vendee, the seller had not in fact adopted this method of determining the amount of his damages, but had pursued for this purpose the second mode of procedure provided in the statute. The defendant thereupon, at the conclusion of the plaintiff's evidence, moved for a nonsuit, and this motion was met by an amendment to the petition, setting out allegations on the question of damages resulting from the breach of the contract, so as to conform to the evidence. This amendment was allowed by the court, over objection, and, a verdict having been returned for the plaintiff, the question whether the amendment was properly allowed is now before this court for decision. The plaintiff in error insists that such an amendment is improper, in that it set out a new and distinct cause of action, and for the further reason that, the plaintiff having elected its remedy when the suit was filed, it was precluded from seeking the remedy set out in the amendment.

The trend of modern legislation, as well as of decisions of courts of last resort, has been to get away from technical rules of pleading which tend to confuse rather than to simplify the issues, and to eliminate as far as possible all merely technical objections to the amendment of pleadings, and in this state the right of the plaintiff to amend his declaration is practically unlimited, so long as he adheres to the originalcause of action and introduces no new party. Civil Code (1910) §§ 5682, 5683. Nothing in the range of pleading is more liberal or broader than the rules stated in section 5682, supra:

"A petition showing a plaintiff and a defendant, and setting out sufficient to indicate and specify some particular fact or transaction as a cause of action, is enough to amend by. The jurisdiction of the court may be shown, and the details and circumstance of the particular transaction may be amplified and varied by amendment. If the declaration omit to allege facts essential to raise the duty or obligation involved in the cause of action which was evidently originally intended to be declared upon, the omitted fact may be supplied by amendment."

The Supreme Court of this state has in so many elaborate opinions interpreted this section and the following one that it would seem now to be a matter of little difficulty to decide when a proposed amendment to a petition is legally permissible. A few of these decisions will be cited further on in this opinion, but it seems to us that a proper conception and application of the sections of the Code above referred to would be sufficient for determining the question.

Bearing in mind the fundamental statutory rule of amendment, which is practically unrestricted except that no new and distinct cause of action or new and distinct parties can be allowed unless expressly provided for by law, the first question to be determined is: What is the cause of action as set out in the petition as originally filed in the present case? A brief and clear definition of "cause of action" is as follows:

"A cause of action may be said to consist of the right belonging to the plaintiff and some wrongful act or omission done by the defendant by which that right has been violated." 1 Words and Phrases (1st Ed.) vol. 2, p. 1015.

In other words, the cause of action consists of two elements: The right of the plaintiff, and the wrongful act of commission or omission by the defendant. In the present case the cause of action pet out in the original petition was the plaintiff's right to have the contract of purchase complied with, and the defendant's violation of that right in refusing to carry out his contract; in other words, it was the breach by the defendant of its contract resulting in the right of the plaintiff to recover damages proximately resulting from that breach. In such cases section 4131 of the Civil Code (1910) gives to the plaintiff three remedies for the purpose of determining the amount of his damages for the breach of the contract. The original petition alleged that the remedy which had been elected by the plaintiff before suit was the first remedy allowed by this section of the Code, and by compliance with that section a definite sum of damages was claimed. No contest was made as to the breach of the contract, and apparently no question was made as to the amount of the resulting damages; but when the evidence disclosed that the plaintiff had not as a matter of fact elected the first remedy prescribed by the statute, but had elected and fully complied with the second remedy prescribed by the statute, both methods of procedure resulting in the same amount of damages claimed, an amendment was offered by the plaintiff and allowed by the court, setting out the facts as shown by the evidence in reference to the plaintiff's election of the remedy for determining the amount of the damages resulting from the breach. No effort was made to amend the allegations of the petition so far as they referred to the cause of action. The amendment was confined simply to a change of the allegations of the petition on the subject of the remedy, in order to make that part of the petition speak the truth. It has been so frequently held by the Supreme Court of this state and the courts of other states and by text-writers that an amendment asking for the application of new or different remedies is allowable, that it has now become an elementary principle of law. Probably the clearest and most exhaustive expositions of the law on this point in the decisions in this state are contained in the opinion of Chief Justice Bleckley in the Ellison Case, 87 Ga. 699, 13 S. E. 809, from which the Code section quoted above was codified, and the opinion of Chief Justice Simmons in City of Columbus v. Anglin, 120 Ga. 785, 48 S. E. 318. In the latter opinion the learned jurist so clearly and fully discusses the question as to what is a new cause of action, and the discussion and definition there given have so fully met the approval of the courts, that the rule there set out, it seems to us, should be conclusive) on the question now under consideration:

"So long as a plaintiff pleads but one wrong, he does not set up more than one cause of action. * * * So long as the facts added by the amendment, however different they may be from those alleged in the original petition, show substantially the same wrong in respect to the same transaction, the amendment is not objectionable as adding a new and distinct cause of action."

In the present case the seller's cause of action arose upon the violation of the purchaser's contract to take and pay for the goods purchased. The remedy for this wrong, while it grew out of the violation of the contract, was not a part of the cause of action, although the sequence thereof. The amendment asks only that the measure of damages which had been elected as the method of procedure before the suit was filed by the plaintiff, and by which election the plaintiff was bound, should be applied as arising from the cause of action. It has been frequently held that a different meas-ure of damages may be added by amendment. St. John v. Leyden, 111 Ga. 152, 36 S. E. 610. In the case here cited the petition claimed as the measure of damages the value of the property sued for. The amendment which was allowed and approved by the court changed the measure of damages to the purchase price of the property. The value of the property and the purchase price of the property may have been different sums, Here the difference in the market price and the contract price and the difference in the price on resale was exactly the same amount, but this is immaterial, as the measure of damages was different in both cases. In Jordan v. Downs, 118 Ga. 544, 45 S. E. 439, it was held:

"Where an equitable petition is filed by wards for the purpose of tracing trust funds which their guardian wrongfully invested in certain land, and the prayer of the petition is for the recovery of the land, an amendment striking this prayer and substituting therefor a prayer for an accounting and for a money judgment with a special lien on the land does not set up a new and distinct cause of action."

Chief Justice Simmons in the opinion said:

"The cause of action was the wrongful investment of the plaintiffs' money in the land. The amendment did not affect this, but was simply a prayer for another form of relief or recovery thereon. The first prayer was for the recovery of the land itself. That was stricken, and in its place the amendment substituted a prayer for the recovery of the money. The only change was to indicate an election to take a money verdict rather than the land. This did not affect the defendant's defenses or constitute a new cause of action."

See, also, the able opinion of Judge Cobb in McCandless v. Inland Acid Co., 115 Ga. 968, 42 S. E. 449. In Walker v. Berger, 148 Ga. 326, 96 S. E. 627, it was held that—

"Striking the allegation that the plaintiff was damaged in a specified sum and adding a prayer for accounting did not set up a new...