82 Mo. App. 652 | Mo. Ct. App. | 1896
The following statement will be sufficient for the points involved, and for the reason upon which our conclusion is based.
Plaintiff and two others, Green and Brooking, jointly sued defendant on a written contract of subscription which promised to pay to “T. W. Green, H. C. Brooking or Orlando Slaughter.” Plaintiff obtained judgment before the justice. On appeal to the circuit court, when it developed that the contract was a promise to pay to Green or Brooking or Slaughter, defendant took the ground that the petition declared on' a promise to pay to plaintiffs jointly, whereas the evidence showed a contract to pay to either of plaintiffs. Plaintiff contended that the contract was as though the promise was to Green, Brooking and Slaughter. The court ruled against plaintiff, and counsel thereupon asked leave to amend by striking out the names of plaintiffs Brooking and Green, leaving the case to stand in Slaughter’s name alone. This was permitted and defendant excepted. The case then proceeded to trial and resulted in a judgment for plaintiff. Defendant thereupon filed a motion for new trial, and the court sustained the motion. Whereupon plaintiff appealed. The ground upon which the new trial was granted is that the cause of action declared on is that of a written contract promising to pay to three jointly, while the evidence showed promise to pay either of the three severally, and that the amendment by striking out the names of the two plaintiffs had the effect to change the cause of action.
Our opinion is that while it may not be true that in all cases where the disjunctive, “or,” is used between the names of contracting parties as in this case, that it would necessarily
Amendments are liberally allowed, especially since the enactment of section 6347, Revised Statutes 1889. But it must be remembered that under the provisions of section 6345, “The same cause of action, and no other, that was tried before the justice shall be tried before the appellate court upon appeal.” See Gregory v. Railway, 20 Mo. App. 448, and Evans v. Railway, 67 Mo. App. 255. The cause of action tried in the justice’s court was a suit on a joint contract. That tried in the circuit court was on a several contract. The same proof would not meet each case. It is true that the section last referred to contains a provision by way of proviso to what we have quoted — “that new parties, plaintiff or defendant, necessary to a complete determination of the cause of action, may be made in the appellate court.” But here no new parties were brought in as parties plaintiff. By striking out two plaintiffs the character of the contract was changed, as well as the contracting parties. If it had been a mere addition of parties without changing the nature of the contract, as if the contract was alleged to have been with three jointly whereas the proof showed it to have been with a greater number; in such instance the additional plaintiffs could be added. The cause of action would remain the same.
It follows from the foregoing that the trial court properly held the contract to be several, and improperly allowed the amendment which changed the cause of action from one joint
