Nassaney v. . Culler

Sea well, J. There are three questions posed by the appeal: 1. Was the court justified, in law, in permitting plaintiff to amend his pleading ? 2. Did the amendment to the pleading, as a matter of law, confer upon the defendant an unconditional right to continuance? 3. Did plaintiff’s pleading in its final form state a cause of action? 'The question whether the complaint states a cause of action must be answered in the affirmative. As originally filed, we think the allegations of fact, if supported by the evidence, would have justified a recovery of damages for a breach of contract, or a rescission of the contract, at the election of the plaintiff. The amendment does not detract from-the legal effect of these allegations, but superadds to them the circumstance that the defendant bought plaintiff’s tractor and trailer at his own mortgage sale. At this point we are concerned only with the inquiry whether the complaint, as amended, states a cause of action, of whatever kind, and we find that it does. Meyer v. Fenner, 196 N. C., 476, 146 S. E., 82. The amendment allowed .the plaintiff does not seem to be -challenged because the transaction to which it relates occurred after the action was brought. That circumstance would not, ipso facto, preclude the plaintiff from pleading it by leave of court in a proper ease as a matter occurring puis darrein continuance and important to be considered in disposing of the controversy — provided it does not assume the role of a new and wholly different claim. In such a situation — that is, where the matter is wholly distinct and did not stem out of the transaction set out in the original complaint and is not sufficiently correlated thereto — the real objection would be noncompliance with G. S., 1-123. See annotation II under this section. Also Reynolds v. R. R., infra. In many jurisdictions, where an amendment setting up matter occurring after the institution of the suit is allowed, it must be by supplemental pleads *327 ing. 41 Am. Jur., Pleading, sec. 302. Tiiat technicality does not prevail here. When a substantially new situation supervenes affecting the rights of the parties within the reasonable scope of the dispute, • both justice to the litigants and the convenience of the court in ending the controversy is often served by bringing the matter within the pending investigation. Walston v. Bryan, 64 N. C., 764, 765. Our statute, G. S., 1-163, provides that the court may “before and after judgment in furtherance of justice . . . amend any pleading . . . by inserting other allegations material to the case; or, when the amendment does not change substantially the claim or defense, by conforming the proceeding to the fact proved.” Construing this section of the law (0. S., sec. 547), McIntosh, in North Carolina Practice and Procedure, see. 487, has this to say: “The statute permits an amendment in the discretion of the court — 'when the amendment does not change substantially the claim or defense.’ This is found in connection with the amendment to make the pleading conform to the proof, but it has been applied generally to all amendments made under order of court.” See Note. A more discriminating view of the statute, contrary to the contention of the defendant, is taken in Capps v. R. R., 183 N. C., 181, loc. cit. 187, where Mr. Justice Stacy, speaking for the Court, says: “It is the general rule, and consistently held with us, that a new cause of action may be introduced by way of amendment to the original pleadings; but the established limitation on the operation of its relation to the commencement of the suit is that if the amendment introduce a new matter, or a cause of action different from the one first propounded, and with respect to which the statute of limitations would then operate as a bar, such defense or plea will have the same force and effect as if the amendment were a new and independent suit.” Citing King v. R. R., 176 N. C., 301; Belch v. R. R., 176 N. C., 22; McLaughlin v. R. R., 174 N. C., 182; R. R. v. Dill, 171 N. C., 176; Fleming v. R. R., 160 N. C., 196; and Union Pac. Ry. Co. v. Wyler, 158 U. S., 285, 39 L. Ed., 983. See also Sams v. Price, 119 N. C., 572, 574, 575, and cases cited. However, under the facts of this case we do not regard 'the amendment as introducing such an entirely new and distinct cause of action as to have put it beyond the discretionary power of the court to permit it. The fact that, if standing alone, it might form the basis of a separate suit, if indeed it had that completeness, is not determinative. Many suits are properly based on a series of related transactions, any one of which might constitute a separate cause of action. Also, several causes of action may arise out of the same transaction and different legal consequences may ensue, according to the theory on which the ease is, tried. But in applying the test, we must regard the factual situation and the manner in which it develops rather than technical labels. “Technical *328 considerations or ancient formulae are not controlling.” Klopstock v. Superior Court, 17 Cal. (2d), 13, 108 P. (2d), 906, 135 A. L. R., 318. It 'is not necessary bere to be reminded of the numerous cases in our reports which stress the new liberalism introduced by our code pleading. See G. S., 1-163, supra, and annotations. Pertinent to the point under discussion and typical of that liberality, in Reynolds v. R. R., 136 N. C., 345, 48 S. E., 765, q.u., the Court permitted a change in the form of action from contract to tort; and in Oates, etc., Co. v. Kendall, 67 N. C., 241, 243, from trover and conversion to assumpsit. See Sams v. Price, supra, 119 N. C., 572, 574, 26 S. E., 170. Moreover, the defendant seems to have waived the objection to the amendment which he now makes, since the matter sought to be set up therein was first introduced to the controversy by defendant’s own pleading, in which, as a further defense, he set up the public sale under the mortgage, basing on that transaction a demand for a deficiency judgment against the plaintiff. Ordinarily, when an amendment is made containing substantially new and material allegations, the opposing party must be given an opportunity to “meet the new allegations and prepare for trial,” and a continuance for such purpose has been regarded a matter of right. McIntosh, N. C. Practice and.Procedure, sec. 486, and cases cited and notes. Sams v. Price, supra. But the principle expressed in the maxim cessante rations legis, cessat et ipsa lex should, a fortiori, apply to a rule of procedure which is the product of the court. The facts set up in the amendment were well known to defendant, and an indefinite continuance would not have put him in a position to dispute them. He also had the parties concerned in the transaction present in court. On the trial he readily testified that he procured an agent to bid in the property for him, and subsequently disposed of the major part of it, the tractor, and regarded the trailer as junk. He then put this agent up as his own witness, who testified that he bought the property for defendant at his request, and turned it over to him. If there was any error in refusing a continuance, it was, therefore, not prejudicial. We find upon the record no sufficient reason for interfering with the result of the trial. No error.