13 Haw. 665 | Haw. | 1901
OPINION OF THE COURT BY
This is an action of assumpsit wherein the plaintiffs claim of the defendant the sum of four hundred and seventy-five dollars, Balance due under a certain contract in writing for the erection of a dwelling-house. In the declaration the plaintiffs are named as Lum Sung, Lo Pau and Pong Chong, doing business as “Yee Sing Tai Company.” Attached to the declaration and referred to therein, is a copy of the contract and in such
After the refusal to receive the contract in evidence, counsel for the plaintiff asked leave to amend the declaration by striking out the word “Company” so that the name of the plaintiff firm as therein stated would be, “Lum Sung, Lo Pau and Pong Chong, doing business as Yee Sing Tai.”' To this counsel for the defendant objected on the ground that the amendment would constitute a change in the parties to the action. The court disallowed the amendment on the ground thus stated.in the objection. All of these rulings were duly excepted to and the case now comes to this court on these and other exceptions.
Whether or not there was a material variance between the declaration and the proofs in the name of the partnership, need not be decided. • Assuming that there was such a variance, we are of the opinion that the court below erred in disallowing the amendment. The use of the word “Company” in the title of the partnership in the declaration was clearly a mistake, even though it was not so stated in argument by counsel for the plaintiff to the presiding judge. Section 1260 of the Civil Laws provides as follows: “Whenever a plaintiff in any action shall have mistaken the form of action suited to his claim, the
It is contended in this court that the amendment could not properly have been made by striking out the word “Company” from the declaration. That such an amendment may be thus made, see Martin v. Kerr, 7 Haw. 350. Moreover, this was not •the objection urged in the court below to the allowance of the amendment. The only ground then stated was, as set forth above, that the amendment would constitute a change in the parties to the action. No objection was made'as to the form of the amendment. Under these circumstances, we think that the objection as to form cannot now be urged in this court.
The error was material and prejudicial. The exception is sustained and a new trial ordered.