Silver v. Jordan

139 Mass. 280 | Mass. | 1885

C. Allen, J.

Although the statute authorizing amendments is very liberal, there is a certain limitation to the power of the court, namely, that an amendment sought for by a plaintiff must be one “ which may enable the plaintiff to sustain the action for the cause for which it was intended to be brought.” Pub. Sts. c. 167, § 42. Accordingly, in a case where an action was brought on a promissory note by an indorsee thereof, and the note was not negotiable, an amendment was allowed striking out the name of the existing plaintiff and substituting that of the payee. Costelo v. Crowell, 134 Mass. 280. But an amendment is not to be allowed for the purpose of enabling the action to be sustained in another person’s name and upon a different cause of action.

In the present case, the cause of action upon which the action was brought was Hayden’s promise to Silver and Gay, upon which it was then supposed or hoped that Jordan and Marsh could be held responsible. Hayden was the person making this promise, not the person receiving it. The promise which Hayden received from Jordan and Marsh, if he received any, was at an earlier time. Silver and Gay were the proper plaintiffs upon the cause of action for which the action was brought. The difficulty was in the proof. It was held that they received no promise from Jordan and Marsh, but only from Hayden. The action was maintainable against Hayden, unless indeed it had been extinguished by payment; and it would have been maintainable against Jordan and Marsh, if the plaintiffs had been able to prove such an express or implied contract as was alleged. Certainly, at the time the action was brought, the cause of action relied on was not a promise by Jordan and Marsh to pay Hayden anything. It is plain, therefore, that the amendment now moved for does not fall within the'statutory authority to allow amendments. On the facts stated in the report, the object- of the amendment is to =enable the action to be sustained for a different cause than that for which it was intended to be brought.

Judgment for the defendants.