Nelson v. Webb , 54 Ala. 436 ( 1875 )

BBICKELL, C. J.

The affidavit, the attachment and the original complaint, fully apprised the defendant of the character of the suit — that it was an action of assumpsit for use and occupation. No amendment of the original complaint, not changing this cause of action, is a departure from the affidavit and writ. The common count for use and occupation, could originally have been joined with the special count. The common count, appropriate for a recovery, if there had not been a special contract, as declared in the special count, may always be joined with the special count. As the common count could originally íiave been joined, its introduction by amendment was proper, not varying or departing from the cause of action, simply averring it in another form, to meet the possible phases in which the evidence might present the case. Under our former practice, when suits were commenced by original writ, on which the cause of action must have been indorsed, a declaration could not be stricken out as varying from the writ, unless there was a radical departure from the indorsement. — Sexton v. Rone, 7 Ala. 829; Tenison v. Martin, 13 Ala. 21.

It is a general rule in assumpsit, that when a plaintiff declares on a special contract, if he fails in his proof of it, he may recover on the appropriate common count, if the case be such that, supposing there had been no special contract, he could have recovered. The rule is as applicable to assumpsit for use and occupation, as to any other form of action. In McMillan v. Wallace, 3 Stew. 185, the plaintiff declared specially on a contract for the payment of rent, joining the common count for use and occupation, and the contract proved varying from that alleged in the special count, the contract being executed, nothing remaining but the payment of the rent by the defendant, he was held entitled to recover on the common count a reasonable satisfaction for his rent, not exceeding the sum promised by the special contract. So if the contract of renting is obnoxious to the statute of frauds, but the defendant has entered and enjoyed possession, a recovery on the common count for use and occupation, may be had . — Hays v. Goree, 4 St. & Port. 170.

There is no limit to the right and power of amendment of pleading under our statute, except that there must not be a total departure from the process, an entire chang§ of the cause of action or of the parties. — Crimm v. Crawford, 29 Ala. 623. Under the narrowest statute of amendments, the misdescription of a contract,' verbal or written, in date or amount, could be corrected. When the complaint described the cause of action as a promissory note, an amendment correctly describing it as a bond, or writing under seal, has been allowed under our present statutes. — Reed v. Scott, 30 Ala. 640. The amendments asked, so as to change the day of payment of the rent and the amount claimed, should have been allowed. We agree with the appellee’s counsel, that if there are separate contracts of renting of different premises, the landlord has a lien on the crop grown on each of the parcels of land, only for the rent of that parcel. If he sues out one attachment only, as he may, counting in his complaint on the several demises, or relying on the common count only, when that would be sufficient, and the attachment is levied only on the crop grown on one of the premises, the court could dissolve the attachment as to the claim of rent of the other premises, thereby confining a recovery to the rent only of the premises on which the crop levied on was grown. — Jordan v. Hazzard, 10 Ala. 221; S. C. 12 Ala. 180; Gill v. Downs, 26 Ala. 670. The consequences apprehended by appellee’s counsel from the allowance of the amendments could not therefore result.

It must not be understood that an attachment for rent can be maintained, unless the relation of landlord and tenant exists. The common count is appropriate for a recovery when that relation exists, the tenant has occupied, and there remains nothing but the payment of rent; or the contract of renting is obnoxious to the statute of frauds, and the tenant has entered and occupied the premises. Such a contract, followed by use and occupation under it, will create the relation of landlord and tenant.

The court erred in its several rulings, the nonsuit must be set aside and the cause remanded.