Lefler v. C. W. Lane & Co.

Houe, J. This action was instituted by plaintiffs, subcontractors, to recover an amount alleged to be due for clearing off a portion of the right of way of the Carolina and Yadkin River Railroad, in which defendant Lane & Co. was the principal contractor and sublet to plaintiff the portion of the work sued for. The railroad company was made defendant for purpose of enforcing and establishing a subcontractor’s lien, and the complaint contains averments looking to the enforcement of the claim in that aspect. As between plaintiffs and defendant Lane & Co., the complaint was originally drawn on the idea that plaintiff, under the contract as originally drawn, had the right to recover at so much per acre for the entire surface area of the distance cleared off, while defendant contended that the contract only conferred the right to recover for the amount actually cleared within the given area. There was recovery according to plaintiff’s position and, on appeal, a new trial was granted, the Supreme Court holding that the contract as drawn, by correct interpretation, conferred a right of recovery only for the acreage actually cleared. See case, reported in 167 N. C., 267. *183 Tbe opinion Laving been certified down, plaintiff, by leave o£ court and over defendant’s objection, was allowed to amend bis complaint so as to allege that tbe agreement between tbe parties gave plaintiff tbe right to recover for tbe entire surface area and that the stipulation to that effect was omitted from tbe contract by tbe mutual mistake of tbe parties. This issue having been answered in plaintiff’s favor and judgment entered, defendant objects to tbe validity of tbe trial chiefly on tbe ground that tbe court bad no right to allow tbe amendment. Under tbe statutes regulating our present system of procedure, Re-visal 1905, sec. 507 et seq., and numerous decisions construing tbe same, tbe power of amendment has been very broadly conferred and may and ordinarily should be exercised in “furtherance of justice,” unless tbe effect is to add a new cause of action or change tbe subject-matter thereof, and our cases on tbe subject bold that, where tbe amendment is germane to tbe original action, involving substantially tbe same transaction and presenting no real departure from tbe demand as originally stated, it shall, when allowed, have reference by relation to tbe original institution of tbe suit. Renn v. R. R., ante, 128; Joyner v. Early, 139 N. C., 49; Lassiter v. R. R., 136 N. C., 89; Nims v. Blythe, 127 N. C., 325; Parker v. Harden, 122 N. C., 111; King v. Dudley, 113 N. C., 167; Kron v. Smith, 96 N. C., 389; Ely v. Early, 94 N. C., 1. This last citation being not dissimilar to tbe amendment allowed in tbe present instance. In illustration of tbe principle, it was held in Parker’s case, supra: “It is in tbe discretion of tbe trial judge to allow an amendment which neither asserts a cause of action wholly different from that set out in tbe original complaint nor changes tbe subject-matter of tbe action nor deprives the defendant of defenses which he would have bad to a new action.” And in case of Smith v. Kron: “1. Tbe distinguished feature of tbe practice introduced by tbe Code is to have actions tried on their real merits, and avert a failure of justice from some defect that can be remedied by amendment, without prejudice to tbe other party. “2. Tbe Superior Court has tbe power to allow amendments at any time, either in tbe allegations of tbe complaint or in making new parties, except where tbe proof establishes a case wholly different from that in tbe pleadings, or where tbe amendment would change tbe subject-matter of tbe action.” In our opinion these authorities are in full support of bis Honor’s decision allowing tbe amendment, and tbe objection of tbe defendant must be overruled. It was further objected that bis Honor made an *184 erroneous decision in allowing the introduction of the contract between the railroad company and the defendant, showing, among other things, the amount allowed the principal contractor for clearing right of way. This document, showing the entire contract between the railroad company and Lane & Co., was directly put in issue by the pleadings, and, apart from this, its contents showing the amount allowed the principal contractor for this very same work were relevant on the first and second issues, tending, as they did, to show that the claim of plaintiff as to the terms of the contract sued on and the mistake in reference to it was neither unreasonable nor improbable. There is no error, and the judgment in plaintiff’s favor is affirmed. No error.