The Detroit, Hillsdale & Indiana Railroad Co. v. Forbes

• Citation: 30 Mich. 165
• Court: Supreme Court of Michigan
• Decision Date: 07 October 1874
• Parties: The Detroit, Hillsdale & Indiana Railroad Company v. David K. Forbes

30 Mich. 165

The Detroit, Hillsdale & Indiana Railroad Company v. David K. Forbes

Supreme Court of Michigan

October 7, 1874

Submitted on Briefs July 9, 1874. [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Hillsdale Circuit.

·Forbes brought his action of assumpsit against the company before a justice, and the defendant not appearing on the trial, recovered judgment, which was taken by appeal to the circuit court of Hillsdale county. The declaration in the justice's court set forth that "on the 1st November, 1870, the said defendants, in consideration that the plaintiff had conveyed to them the right of way for the railroad track across certain lands of said plaintiff, undertook and promised to move a certain barn of said plaintiff thereon situated, and to put the said barn, and the sheds thereto attached, in good repair," and then assigned, as a breach, that defendants "have not moved said barn and put the same in good repair." To this declaration the defendant did not plead in the justice's court, but, by consent, pleaded the general issue in the circuit. On the trial at the circuit, plaintiff offered in evidence a quit-claim deed from himself to the company, dated October 28, 1869, purporting to bargain, sell, convey and quit-claim "all those certain lands and premises situate in the county of Hillsdale,· ^[*] described as follows, to wit: One hundred feet in width, being fifty feet on each side of the line, which may be hereafter established by said company for the route of their railroad, over and across the following described land, to wit: the southwest quarter of the northwest quarter of section twenty-five," etc. [giving township and range], "provided, that said land hereby conveyed shall be used for the purpose of constructing and maintaining a railroad, and the appurtenances thereto, and for no other purpose whatever."

To the introduction of this deed, and all testimony under the declaration, the defendant objected, for the reason that the declaration disclosed no cause of action; whereupon the court allowed the plaintiff to file an amended declaration, which he did, the defendant excepting to this ruling of the court; and after the amended declaration, defendant asked for time to answer the same, according to the course and practice of the court, which was refused, and defendant excepted. But the court allowed defendant to file a general demurrer, which was overruled, defendant excepting. Defendant then pleaded the general issue.

This amended declaration sets out the contract declared upon as follows: that on the 15th November, 1870, at etc., "the said defendants, in consideration that the plaintiff would convey to them, said defendants, the right of way for their railroad track across certain lands of said plaintiff, undertook and promised said plaintiff to move a certain barn and sheds thereto attached, of said plaintiff, thereon situated, and to put the said barn in good repair; that the plaintiff afterwards, on the same day, in consideration of the promises, did convey to said defendants the said right of way for the said railroad track." "But said defendants have not moved said barn and put the same in good repair."

To maintain the declaration, the plaintiff again offered in evidence his deed to the company, above described, which was again objected to, for the reason that the amended declaration discloses no cause of action, but the deed was admitted, to which defendant excepted.

Evidence was then given, on the part of the plaintiff (some of which was excepted to, and the exceptions, so far as found material, are noticed in the opinion of the court), tending to prove what the contract was, the consideration, how far the defendants had performed, and wherein they had failed to perform it, and the damages for non-performance. The testimony of the plaintiff himself, on his direct examination, tended to show that the contract was a verbal one, there being no writing, except the deed; that the company was to move the barn and sheds from where they were, on the land conveyed [whatever that was ], to any place on plaintiff's farm where he wanted it, and pay his subscription of one hundred dollars, and pay fifty dollars in money, and leave the barn in good repair; that plaintiff, in consideration of this agreement, was to give them the deed, which he did; and his testimony on cross-examination tended to show, that, as a part of the agreement, the company were to leave the sheds, as well as the barn, in good repair.

The testimony of the plaintiff's sons was substantially like that of his father, as to the contract.

The barn was moved by the company, but not the sheds, and plaintiff's evidence tended to show that one of the sills was broken in moving, and that it cost plaintiff sixteen dollars to get a new one, and that the barn was not left in good repair, but that it cost him one hundred dollars to repair it; that the sheds were left, got snowed under, and were blown down, and the teams at work on the railroad ran over them; that plaintiff moved the sheds afterwards, and then it cost him thirty-five dollars to move and put them in repair.

On the part of the defendant the agent of the company, with whom the contract was made, was sworn, and his testimony tended to show that the contract was that plaintiff was to deed to the company the right of way, he reserving the barn, and that the company was to move it for him, cancel his subscription of one hundred dollars, and pay him fifty dollars in money; that this was orally agreed upon before and at the time of the deed; that, as to the removal of the barn, the company was to move it in as good a condition as its nature admitted, leaving it as good as it then was, barring accidents incident to removal; that the barn was old and the sills rotten; that nothing was said about removing the sheds, and that plaintiff had never said any thing, or made any complaint to him, about the removal of the sheds.

There was no proof on the trial of the incorporation or corporate existence of the company.

The testimony being all closed, and the defendant having requested certain charges to be given, which were refused, the plaintiff, before the case was argued, moved and was allowed to amend his declaration by adding a second count.

This count was substantially the same as the first count, above stated, except it states the contract as to the removal to be "to move the barn, and to put said barn and sheds thereto attached in as good repair as the barn and sheds then (to wit: at the time and place aforesaid) were." And the breach assigned is for not moving the barn and sheds and not putting them in as good repair as they were," etc.

Judgment reversed, with costs, and a new trial awarded.

E. L. & M. B. Koon, for plaintiff in error.

Knickerbocker & March, for defendant in error.

OPINION

Christiancy, J.:

There was no error in allowing the plaintiff below to amend his declaration at the commencement of the trial, when the objection was made that it disclosed no cause of action. The only substantial change made by the amendment was to make the statement of the consideration of the defendant's promise executory, instead of an executed consideration, that "plaintiff would convey," instead of "had conveyed." The defendant could not possibly, from the nature of the case, have been misled, or taken by surprise. And the court was correct, also, in refusing the time to plead as fixed by rules of court applicable to pleading in vacation. The court was also clearly right in overruling the demurer, as well as the objection to the admission of evidence under the amended declaration, on the alleged ground that it did not disclose a cause of action. The declaration, as amended, sufficiently stated a good cause of action, if sustained by the requisite proof.

While upon this question of amendment, we will also dispose of the amendment made, by adding a second count, after the evidence was all in. This was doubtless done for the purpose of enabling the plaintiff to recover upon a state of facts which it was supposed the jury might find from the evidence, but which was variant from the cause of action, as set forth in the declaration as it then stood. The evidence of the whole transaction had been given, and there is no pretense that it disclosed or referred to more than one contract, and what was done or omitted under it, and therefore it is difficult to see how an amendment, made under such circumstances, merely to avoid a variance as to some circumstances connected with the cause of action, and to enable the plaintiff to recover according to the contract as proved, could operate as any real hardship or surprise upon the defendant. On the contrary, without the allowance of such an amendment on the trial, it often operates as a real hardship upon a plaintiff, and tends to defeat the ends of justice, to be turned out of court and put to the expense of a new suit, when the evidence in the cause shows a good cause of action, differing slightly from that set out in the declaration in some particular in which the evidence may have turned out different from what he expected.

And while such amendments should be granted with great caution, and never when the court have reason to believe that it will tend to defeat the purposes of justice, or operate as a real surprise upon the defendant; yet, when there is no reason to apprehend such a result, and the defendant fails to show the court, by affidavit or otherwise, that it is likely so to operate. I think it is in the sound discretion of the judge to allow the amendment; and I can see no abuse of that discretion in the present case.

It may however, be questioned whether the amendment made by the second cour...