Southern Express Co. v. Boullemet & Perkins , 100 Ala. 275 ( 1893 )

McCLELLAN, J.

When a cause is removed from a justice’s court into the Circuit Court, or City Court having the jurisdiction in such cases of Circuit Courts, by appeal or certiorari, it is triable de novo, without regard to any defects in the proceedings; and a trial may be had in the appellate court either on the original complaint, which may be amended, or a new complaint which maybe filed.—Littleton v. Clayton, 77 Ala. 571.

In this case the complaint in the justice’s court consisted of a mere statement of the cause of action on the summons. This was treated by both parties in the City Court as the complaint in the case in that court, no new complaint being filed. Eor all purposes this mere statement was the complaint and as such subject to amendment at least to the extent that any formal declaration originally filed in that court would have been.

The only limitation upon the right of amendment of complaints in respect to striking out and adding parties is that an entire change of parties can not be wrought thereby. Even a change of the capacity in which, the plaintiff sues is not forbidden though formerly it was held otherwise.—Lucas v. Pittman, 94 Ala. 616; and if it could be said that the amendment made here by which the action wms converted from the individual suit of Boullemet to the partnership suit of Boullemet & Perkins was a change of the capacity in which the original plaintiff sued, it would still be unobjectionable.--McCaskey & Ratcliff v. Pollock & Co., 82 Ala. 174. The trial court therefore did not err in allowing the amendment complained of.

We may concede, as did the judge of the City Court, that defendant’s agent had no authority to bind carriers between Binghamton N. Y., and Mobile, Ala., other than the Southern Express Co. in the matter of rates to be charged between those points, there being no joint traffic or tariff agreement between the several companies. But he did have authority, or at least it was within the scope of his agency, and hence the equivalent of authorization, to give the rates at which property shipped from Binghamton and reaching Mobile over the Express Company’s line of carriage would be delivered to consignees at the latter point, and to bind his company to deliver at such rates. If in making rates and thereby inducing shipments, he commits an error it is a matter between him and his principal. If he contracts to deliver a consignment upon payment of an amount which only equals or is less than the charges of the connecting lines, his company and not the consignee is responsible, and as between it and the consignee, the company must bear the loss.

We concur in the City Court’s finding of facts, and in its application to them of the law; and its judgment is therefore

Affirmed-