Beavers v. Hardie

59 Ala. 570 | Ala. | 1877

STONE, J.—

The present action was commenced in 1854, and, for some cause not explained, was not tried until 1877. The original complaint contains five counts.' A sixth was ■added, date not given. At the term of the trial—Spring, 1877—a seventh count was filed by leave of the court, which, it is supposed, was founded on the testimony of the witness Thomason. After the plaintiff had submitted his testimony to the jury, he asked leave to file an additional count, which the court refused to allow, and he excepted.

Our statutes in regard to amendment of pleadings have been very liberally construed by this court.—See Code of 1876, § 3155 et seq.; ib. 3006; Russell v. Erwin, 38 Ala. 44. With very limited exceptions—entire change of parties, change of form of action, or entire change of cause of action— amendments are allowed at any stage of the proceeding, so as to secure a trial on the merits. But certain rules must be observed, and certain limits should not be transcended. It is not error to refuse an amendment to which a demurrer would be sustained. And, pending the trial, an amendment should not be allowed, which is not necessary to secure justice between the parties. After the plaintiff has closed his testimony, he should not be allowed, by amendment, to present a cause of action which he has no testimony to support.

The count offered, number eight, like count seven, is manifestly based on Thomason’s testimony, and is very slightly variant from count seven. The agreement and breach which are averred in the offered count are as follows: “ That the cotton should be held ninety days on the advance, and that said Graham II. Beavers would be permitted to renew the bills of exchange, and. extend the sum sixty days, without charge for commissions for accepting the renewed bills of exchange, which were to bear eight per cent, interest; the cotton so shipped to defendants was to be held that long, unless it cpuld oe sold for ten cents per pound, or was sold upon the/written instructions of the said Graham H. Beavers.. The sa;id Graham H. Beavers shipped to the defendants the • cottoíí then owned by him and the cotton purchased by hira with money obtained from said defendants aforesaid, to"jpe sold by said defendants at ten cents per pound, on the inJstructions of the said Graham H. Beavers; the said defend-/ants afterwards, to-wit, on the-day of April, 1854, sold said cotton at seven and one-fourth cents per pound, without instructions from the said Graham H. Beavers.” The seventh count avers the agreement to be “ that the cotton should be ■ held ninety days on the advance, and that the said Graham H. Beavers would be permitted to renew the bills of exchange, which were to bear eight per cent, interest. The cotton so shipped was to be held that long, unless,” &c. The differ•ences in the counts are two: The seventh count charges that,, Beavers was to have the privilege of renewal after the ninety days, but does not state how long. Hence, there is no particular time after the ninety days, which that count avers the defendants agreed to hold the cotton, unless they realized ten cents a pound, or were instructed by Beavers to sell. The eighth count charges an agreement to hold sixty days beyond the ninety, making one hundred and fifty days, unless they sold for ten cents, or under instructions from Beavers. The second difference in the two counts is, that the seventh makes no allusion to the terms on which the renewed bills were to be accepted, while the eighth charges they were to be accepted without commissions. The testimony of the witness Thomason, if it outweighs the other testimony, tends to prove the truth of the averments, as set forth in the disallowed! count. And the question arises, was the averment found in that count, and not found in the seventh, material? Was the variance between Thomason’s testimony and the averments of the seventh'‘count, of such character as to impair plaintiff’s right.to recover on that testimony, and under that count? Thomason’s ^testimony stands unsupported in the precise averments,contained in these counts. Atable, shown in the evidence, proves .that óqtton had risen a half cent in the pound on 3rd May. The table extends no farther. One witness for plaintiff testified that cotton rose during the spring of 1854 to ten cents a pound. There is no testimony ■of its value or price afterwards. The seventh count charges an agreement to hold the cotton for ninety days, with certain conditions. The agreement was made Match 3rd. Ninety days would bring June 1st. The. spring expired with the month of May, and there was no testimony tending to show any rise in the price after that tinie, or injury to plaintiff, caused by not holding the cotton beyond tha't time. Under the seventh count, the plaintiff, if the agreement to hold was found by the jury, could have recovered all damage he had suffered by a sale before the first day of June. Therfe was, then, no testimony given or offered, tending to showh plaintiff could have recovered anything under the disallowed eighth count, which he could not equally recover under the seventh count. It is not error to refuse an amendment offered pending the trial, when there is nothing to show the party offering it was injured by the refusal. To hold otherwise might lead to great delay and abuse. Whether there was an agreement to hold the cotton and renew the bills for sixty days after the expiration of the ninety, did not affect the admissibility of Thomason’s testimony, and we hold that the court did not err in refusing to allow the amendment.

The second charge asked by plaintiff, and refused by-the court, supposes, as one of its constituents, a fact of which there is no testimony in the record. Its language is, “ the defendants were not authorized to sell the cotton for less than ten cents per pound after the maturity of the advancements made by the defendants on the cotton,” &c. There is not only no testimony that the cotton was sold after the maturity of the advancements, but the uncontradicted testimony is, that the sale was made before the maturity of the -advancements. This rendered the charge abstract, and justified its refusal, even if in all other respects it asserted correct legal propositions.—1 Brick. Dig. 338, § 41; State v. Schuessler, 3 Ala. 419.

To the giving of the five charges asked by defendants, there was. one single exception reserved. Under all our rulings, such exception avails nothing, unless all the charges thus excepted to are bad.—1 Brick. Dig. 248, § 87 ; McGehee v. The State, 52 Ala. 224. Charge four is unquestionably free from error, and we think charge five correctly declares the law.—Brown & Co. v. McGraw, 14 Pet. 479. We need not consider the other charges.

There is no error in the record, and the judgment of the Circuit Court is affirmed.