Alabama Construction Co. v. Watson
48 So. 506
Ala.
1908
Check Treatment
ANDERSON, J.

The only question presented by this Record is < whether or not the first and third counts offered as an amendment were such a departure from the original complaint as to constitute an entirely new cause of action. The original complaint was for an account between the plaintiff and the defendant and for work done by the plaintiff for the defendant. The amended counts 1 and 3 claim for work done by the plaintiff and one Harrison as partners and for an account stated between said parties. It is true the amended counts aver-the acquirement of Harrison’s interest before the commencement of the suit; but this fact cannot constitute the claim as being for the same cause of action, and this case falls squarely under the influence of Ivey Coal Co. v. Long, 139 Ala. 535, 36 South. 722. It is true in the case cited it was a change from an account due Walter Moore, the plaintiff’s assignor, to one due immediately to the plaintiff, and in the case at bar the change is from a- claim immediately due the plaintiff to one that was due Watson & Harrison. It is not a change by the mere addition of parties, as Harrison is not added, but a change from one cause of action to another — from a claim due immediately to the plaintiff to one that was earned by or contracted with the firm.

In the recent case of Alabama, etc., Co. v. Heald, 154 Ala. 580, 45 South. 686, this court, in applying a test as to amendments, in effect said that they were permis*169sible if a recovery under either count would bar a recovery upon the other; non constat, if one would be no bar to the other, the amendment would be a departure. A judgment on the original complaint for labor performed by the plaintiff individually could not bar a. recovery for labor done by a firm of which he-ivas a member. Nor would a judgment on an account between the plaintiff individually and the defendant bar a recovery upon one due the firm of Watson & Harrison, notwithstanding the plaintiff has acquired the interest of Harrison. The original complaint is not for Avhat belongs to the plaintiff growing out of dealings between the firm and the defendant, but for something resulting from dealings or transactions between the plaintiff individually and the defendant.

The trial court erred in the allowance of amended counts 1 and 3, over the objection of the defendant, and the judgment must be reversed, and the cause is remanded.

Reversed and remanded.

Haralson, Doavdell, Simpson, and McClellan, JJ., concur.