S. Brodek & Co. v. Hirschfield, 57 Vt. 12

57 Vt. 12 | Vt. | 1885

The opinion of the court was delivered by

Royoe, Ch. J.

The first exception taken was to the ruling of the court below allowing the amended counts, which are made a part of the exceptions to be filed.

The original declaration contained the common indebitatus counts ; and the only claim made by the plaintiffs was for goods sold. To warrant a recovery under that declaration, it was incumbent upon the plaintiffs to show that the goods were sold to the defendant. Curtis v. Smith, 48 Vt. 116. They could not recoverupon proof that the defendant guaranteed the payment for the goods. The new counts which the plaintiffs were permitted to file, declared upon a contract by which the defendant, for a consideration named, guaranteed the payment of a bill of goods, which is the same bill of goods sought to be recovered for, and described in said contract as having been sold to M. G. Hirschfleld.

The original declaration counted upon a sale made to the defendant; the amended counts, upon a contract of guaranty. Were the amended counts for the same cause of action as that originally declared upon? It is evident to us that they were not. Under the original declaration a recovery might he had upon proof of a sale; under the new counts a recovery could only be had upon proof of the execution of the contract of guaranty; and then not because of a sale of the goods to the defendant, but by virtue of the contract executed by him.

The court has always been liberal in the matter of allowing amendments; but since the case of Carpenter v. Gookin, 2 Vt. 495, has refused to alloAv amendments to be made which changed the cause of action, or new counts to be filed which stated a new cause of action; and the purpose and intention of the plaintiff in instituting the suit have never been allowed to control or influence the court in alloAving or refusing amendments. Dewey v. Nicholas, 44 Vt. 24.

It was error to allow the new counts to be filed, and to admit evidence to show a cause of action under them. Reference is made to all the evidence that was put in on the trial which is applicable to the new counts. The plaintiffs evidently acted upon the belief that a recovery might be had upon the new counts, and so may have omitted to put in evidence to prove the original declaration. The judgment is reversed, and if the plaintiffs desire, the cause will be remanded.