Holmes v. Robinson Manufacturing Co. , 60 Me. 201 ( 1872 )

Appleton, C. J.

This is an action of assumpsit on an account-annexed for eight tons of hay at fifteen dollars per ton. There was no dispute as to the price of the hay. The only controversy between the parties related to the quantity.

The plaintiff was permitted to amend by adding a count setting forth that a controversy had arisen as to the amount of hay delivered, and that this question had been referred by parol to a referee, who awarded the amount of hay to be the same as set forth in the first count, and a promise to abide by and perform said award.

The hay referred to in the first is the same as that mentioned in. the second count. The amendment, therefore, introduces no new cause of action. In Perrin v. Keene, 19 Maine, 355, a suit was brought upon a note signed in the name of the firm by one of the copartners after its dissolution. It was held not binding upon the firm, and leave to amend was granted by filing a new count upon the original cause of action.

In Burnham v. Spooner, 10 N. H. 165, the plaintiff declared upon a promissory note given for certain goods sold by him to the defendant. He was permitted to amend by filing a count for goods and merchandise sold and delivered. In Downer v. Shaw, 23 N. H. 125, in debt on a judgment recovered in another State, on a promissory note, the court allowed the declaration to be amended by adding a count upon the note. In Goodrich v. Bodurtha, 6 Gray, 323, it w'as held that an action pending upon a judgment which -was reversed during the pendency of the suit for want of jurisdiction, might be amended by declaring upon the note. The first count was properly added by way of amendment. Colton v. King, 2 Allen, 317.

It is not perceived why the award, relating only to the quantity, might not have been introduced to support the first count. In that case, the amendment would be unnecessary and immaterial.

The second count, which was added by way of amendment, sets forth that various controversies having arisen between the parties, they were submitted to a referee, by whom an award was made, and that the defendant promised to abide by and perform said award, etc. This manifestly introduces a new cause of action, for any matter in controversy might have been introduced under this count. But the evidence is fully reported, and it is abundantly manifest that no evidence was offered to support this count. The defendant has in no wise suffered from this amendment. As the case shows that no evidence was offered under this count, it may be stricken out after verdict. Hayward v. French, 12 Gray, 453.

There is no such preponderance of proof on the part of the defendant as would justify or require that the verdict should be set aside as against evidence.

Exceptions and motion overruled.

Judgment on the verdict.

Cutting, Walton, Dickerson,- and Danforth, JJ., concurred.