Gilliam Furniture, Inc. v. Bentwood, Inc.

147 S.E.2d 612 (1966) 267 N.C. 119

GILLIAM FURNITURE, INC.
v.
BENTWOOD, INC. and Accurate Fabricating Company, Inc., and E. L. Lowe.

No. 452.

Supreme Court of North Carolina.

April 20, 1966.

Collier, Harris & Collier, by Robert A. Collier, Jr., Statesville, for plaintiff appellee.

Battley & Frank, by Jay F. Frank, Statesville, for defendant appellant.

PLESS, Justice.

G.S. § 1-163 provides "the judge or court may, before and after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading * * * by inserting other allegations material to the case." Many annotations under this statute show that even without the statute the Superior Court possesses an inherent discretionary power to amend pleadings at any time and that amendments should be liberally allowed. It is said in Perkins v. Langdon, 233 N.C. 240, 63 S.E.2d 565:

"* * * (T)he powers of amendment conferred by this statute * * * are by its very terms left to be exercised in the discretion of the court. Therefore no inflexible rule applicable to all cases can be laid down. Necessarily each case must to some extent be decided upon its particular facts."

It was said in Bassinov v. Finkle, 261 N.C. 109, 134 S.E.2d 130:

"The allowance of an amendment which only adds to the original cause of action is not such substantial change as to amount to an abuse of discretion."

In Mica Industries, Inc. v. Penland, 249 N.C. 602, 107 S.E.2d 120, the court says:

"* * * (I)t (is) permissible under G.S. § 1-163 to allow plaintiff to introduce a new cause of action by way of amendment if the facts constituting the new cause of action arise out of or are connected with the transactions upon which the original complaint is based."

In this case the deceased, E. L. Lowe, having been made an additional party defendant after the institution of the action, filed an answer in which he denied that his corporation had guaranteed Bentwood's account, but asserted that his action was merely a device intended to prevent further questioning and also to "save face" for L. S. Gilliam, Sr. It was entirely appropriate for the plaintiff under these conditions to act to hold Lowe (or rather his estate) liable to it and, it must be recalled that in the first Reply to which no exception has been taken) the plaintiff seeks to recover of defendant Accurate Fabricating Company and/or E. L. Lowe, the sum of $26,949.88, et cetera. The proposed amendment will permit introduction of evidence if available tending to show Mr. Lowe's individual liability that might not have been competent without the amendment.

The plaintiff's cause of action, however, must be alleged in the complaint and not in the reply, Phillips v. Hassett Mining Co., 244 N.C. 17,92 S.E.2d 429. Since the plaintiff first stated a cause of action against Lowe in his "first reply," we will treat both replies as amendments to the complaint, Scott v. Bryan, 96 N.C. 289, 3 S.E. 235, and the plaintiff is directed to recast his pleadings accordingly.

The action of the lower court, except as hereinabove modified is

Affirmed.

MOORE, J., not sitting.