Lycoming Fire Insurance v. Billings, 61 Vt. 310

Lycoming Fire Insurance v. Billings

61 Vt. 310 | Vt. | 1889

The opinion of the court was delive red by

Rowell, J.

The original declaration counted upon an insurance premium note for $350, dated July 13, 1877, for value received in policy No. 109692, issued by plaintiff to defendants, payable at such times as plaintiff’s directors might require agreeably to its act of incorporation. The declaration then went on and made the necessary allegations for the recovery of an assessment of 20 per cent on the amount of the note. The case standing for trial, plaintiff moved for leave to amend the declaration ■by filing new counts, which it presented, upon the note originally declared upon, describing it as dated June 13, 1877, and as originally given for $600, but afterwards, and before the assessment sought to be recovered, reduced by indorsements to $350, but otherwise declaring as in the original declaration ; and offered to prove that the notes were identical. Rut the court refused to hear the proof, and as matter of law and not of discretion, overruled the .motion, on the ground that the amendment asked for would change the cause of action.

In this there was error. Here was something on the record to amend by, and the court should have inquired whether in point of fact the proposed new counts declared upon the same cause of action as the original declaration; and in the prosecution of this inquiry it would not have been confined to an inspection of the papers merely, but could have gone outside of them if necessary in order to satisfy itself how the fact was. Hill v. Carpenter, 34 Vt. 535; Boyd v. Bartlett, 36 Vt. 9.

*312If the pleader intends to declare upon one cause of action, but in point of fact declares upon another; as, if he intends to declare upon one promissory note but declares upon another, there can be no amendment by declaring upon the note intended to be declared upon, without introducing a*new cause of action, for there would be nothing on the record to amend by. But when the cause of action in fact declared upon is merely misdescribed, then there is something to amend by, and the court may in its discretion allow amendments on being satisfied that they are for the same cause of action.

This case as presented is one of misdescription of the instrument declared upon, and therefore the court might, in its discretion, have allowed the amendment asked for, and we think the identity of the causes of action sufficiently appears from the papers themselves; but if the court below was not satisfied by this, it should, in its discretion, have inquired further.

Judgment reversed and cause remanded.