D. Dewey & Co. v. Nicholas

| Vt. | Aug 15, 1871

The opinion of the court was delivered by

Royce, J.

This was an action of assumpsit commenced before a justice of the peace, and came before the county court by appeal.

The plaintiffs’ claim, as described in the declaration in the writ, was for goods sold and delivered. In the county court the plaintiff filed a new declaration containing the common counts in assumpsit, and under this declaration claimed the right to recover for work and labor, as well as for goods sold and delivered.

The defendant insisted that no recovery could be had for work and labor, for the reason that the cause of action, as far as this portion of the claim was concerned, was different from that declared upon in the writ. But the court permitted the plaintiff to recover for the claim for work and labor, under the new declaration. In this we think there was error.

The case shows that the account for the work and labor was mixed in with the account for goods sold, and that the plaintiffs intended that the writ should be for the whole account. But the intention of the plaintiffs cannot in this instance be permitted to vary the legal rights of the parties.

The now declaration in this case seems to have been filed under the rule of court permitting new declarations to be filed ; but a declaration thus filed is subject to the same rule, as far as introducing a new cause of action is concerned, as if it had been filed by leave of court. The rule laid down in Carpenter v. Gookins, 2 Vt., 495" court="Vt." date_filed="1829-02-15" href="https://app.midpage.ai/document/carpenter-v-gookin-6571197?utm_source=webapp" opinion_id="6571197">2 Vt., 495, that an amendment of a declaration cannot bo granted which changes the form of action, or introduces new counts for a new cause of action not contained in the original declaration — has been recognized in the numerous reported cases in this State, where this question has arisen, since that time, and may now be regarded as the settled law upon that subject.

The plaintiffs could not x'ecover for the work and labor under the declaration in the writ, and if they recover for it, it must be because this cause of action is covered by their new declaration. This, we think, would be in direct conflict with the law upon this subject, and that their right of recovery should have been limited to the cause of action stated in the original declaration.

The judgment must be reversed, and judgment rendered for the plaintiffs to recover the sum of $20.30, the amount which the court has found due to the plaintiffs for goods sold.