Hughes v. Albertville Mercantile Co.

WALKEB, P. J.

The complaint counts upon a joint cause of action against all of the defendants named in it. On the trial there was evidence tending to show that the account- sued on was not jointly made by the two defendants, but that whatever liability the defendant Hughes (the appellant here) had incurred in reference to that account was the result of separate dealings or transactions between him and the plaintiff in regard to it. “Though the suit may be against several defendants, and the complaint allege a joint contract, if, from the evidence, it appears that one of the defendants did not in fact make the contract jointly with the others, the complaint may be amended by striking out the name of the person so improperly joined. In such case, the amendment is regarded as a correction of a description of the cause of -action.”—Jones v. Englehardt, 78 Ala. 505. Under the aspect of the evidence above mentioned, there was a fatal variance between the allegations and the proof, which -was curable by an amendment of the complaint striking out one of the parties defendant; and the allowance of such an amendment did not constitute a ground for discontinuing the action on the motion of the remaining defendant,—Code, § 5367; Jones v. Englehardt, supra; Cobb v. Keith, 110 Ala. 614, 18 South. 325; Jackson v. Bush, 82 Ala. 396, 1 South. 175.

The trial court charged the jury upon the effect of the testimony, without being required to do so by one of the parties. This is forbidden by the statute, and constitutes a ground of reversal.—Code, § 5362; Mayer v. Thompson-Hutchinson Building Co., 116 Ala. 634, 22 South. 859.

Reversed and remanded.