Nickerson v. Bradbury

88 Me. 593 | Me. | 1896

Peters, C. J.

One Pushor mortgaged to the plaintiff and others certain personal property, among which was one red miare., seven years old, being the same purchased by Pushor of ■one Connor, and also another red mare, eight years old, which Pushor bought of one Smith. And the plaintiff afterwards by purchase from the co-owners became sole owner, as mortgagee, of both horses. After the mortgage was given, and subject to :it, Pushor sold the Connor mare to the defendant; and what became of the other one does not here appear.

The plaintiff" with his counsel went upon the premises of the defendant and there demanded a red mare of him which demand was refused. Thereupon the plaintiff brought an action of trover against the defendant for the conversion of a red mare, describing her in his declaration as "a red mare at that date eight years old, being ithe same mare that George A. Pushor purchased of John Smith.” It becoming evident at the trial by the testimony introduced in defense of the action, that the defendant never had any possession of the Smith mare, the plaintiff asked leave to insert a new count in his writ, declaring upon the conversion by the defendant "of a .red mare formerly owned by George N. Pushor.” The presiding justice, as a matter of law and not mei’elv of discretion, refused an allowance of the amendment, and the question now is whether that ruling was right or not.

More properly, perhaps, the motion should have been to be allowed to substitute the second count for the first, because under the two counts a recovery might be had for the two horses instead of one; but no such idea as that is entertained, and the real issue is whether, having declared for the horse bought by the mortgagor, Pushor, of Smith, the plaintiff can be legally allowed in any manner and under any terms to so amend his declaration as to recover for the horse which Pushor. formerly purchased of Connor. We feel compelled to answer this inquiry in the negative.

The essential portion of the description, in the mortgage, of the two animals, and the only guide to distinguish between them is that one came by purchase from Smith and the other from Connor. They were of the same color, and their ages were so nearly alike as to render that mark of description of no consequence.

One cannot sue another for one thing and recover for another and different thing. He cannot sue for the conversion of a horse and recover for the conversion of an ox, nór for one horse and recover for another horse. He cannot sue for the conversion of a horse known as the Smith horse and recover for the conversion of another horse known as the Connor horse, and still the motion by the plaintiff to amend is virtually asking leave to do so.

The cases cited in behalf of the plaintiff do not sustain his contention. In the case of Haley v. Hobson, 68 Maine, 167, relied on by plaintiff, it was held that a demand sufficiently described by the declaration in an action may be recovered in such action, although the plaintiff did not contemplate its recovery when his writ was sued out. This is because the declaration itself is the only criterion as to what is recoverable under it. Certainly that rule does not help the plaintiff in this action.

In Walker v. Fletcher, 74 Maine, 142, the authority most relied on for the plaintiff and one perhaps more nearly approaching towards supporting his proposition of amendment than any other, it was held that a plaintiff who sued another for negligently burning his "ash” lumber, might be allowed to amend by substituting in the declaration the word "birch” for "ash,” the latter word having been inadvertently inserted. The amendment was allowed upon the ground that the pleader was intending to describe certain lumber but by mistake partially misdescribed it, the court holding that the amendment did not. change the real cause of action at all. But it is plainly evident that, in the case at bar, the pleader in framing his declai-ation described the horse just as he intended to describe him. He made no mistake in his declaration. There was no slip of the mind or pen. His mistake was in supposing that the Smith horse was the one he was in pursuit of. And this very clearly distinguishes the present case from the case cited.

The limitations of the docti’ine of amendment, as bearing on the present question, are stated in the case of Dodge v. Haskell, 69 Maine, 429, in the manner following: "The note was declared upon as dated November 23, 1869. The date in the count was amended so as to read August 23, 1869. The amendment was allowable. It does, in one sense, permit a new cause of action to be described, but not in the sense that the rule is to be understood. The declaration, amended, describes the note correctly; unamended, it «described it incorrectly. Still, it identified it, there being but one note. As Jacob’s L. Die. has it, citing ancient authorities: 'If a thing which a plaintiff ought to have entered himself, being a matter of substance, is wholly omitted, this shall not be amended, but otherwise it is, if omitted only in part and misentered.’ The reason of it is that it appears, from what is described, what was intended to be described. Warren v. Ocean Ins. Co. 16 Maine, 439. The nature of the cause of action was not changed. Rand v. Webber, 64 Maine, 191, has been erroneously supposed to allow an amendment to the extent of allowing the nature of the action to be changed. That case merely allowed a correction of the writ, already improvidently and improperly amended, that such a result might be avoided.”

In Stevenson v. Mudgett, 10 N. H. 338, the idea of the doctrine is clearly expressed, where it is said : " An amendment which changes the alleged date of a contract, or the sum to be paid, or any particular of the matter to be performed, or the time or manner of performance, changes, in one sense, the cause of the action ; but it is not in this sense that the rule is to be understood. Amendments of that character, so long as the identity of the matter upon which the action is founded is preserved, are admissible ; the alteration being made, not to enable the plaintiff to recover for another matter than that for which he originally brought his action, but to cure an imperfect or erroneous statement of the subject matter, upon which the action was in fact founded. So long as the form of action is not changed, and the court can see that the identity of the cause of action is preserved, the particular allegations of the declaration may be changed, and others superadded, in order to cure imperfections and mistakes in the manner of stating the plaintiff’s case.”

It may be unfortunate that the plaintiff will be prevented by the operation of the statutes of limitation from resorting to a new action to recover for the conversion of the right horse, but that will be the pemdty to be suffered by him for entering an action in court and allowing it to sleep on the docket there eight years before bringing it to a trial.

Exceptions overruled. Judgment for the defendant.