Flanders v. Cobb

Foster, J. The plaintiff and defendant traded horses. The defendant was to pay seventy-five dollars to the plaintiff as the difference between horses, and in lieu of the money turned out a negotiable promissory note of eighty dollars, which he held against one Joseph Frost. The note was not then due, and the defendant indorsed it in blank. The¡, note was not paid at [493] maturity, nor was the defendant seasonably notified so as to hold him as an indorser. The plaintiff claims that while the trade was going on the defendant represented that the maker of the note was a man of means and financially responsible, and that these statements were false and fraudulent, and made with intention of deceiving him, and that he relied upon them and was thereby deceived and injured. On the other hand, the defendant asserts that he made no misrepresentations; that what he said was but the honest expression of an opinion ; that the plaintiff neglected seasonably to notify him so as to hold him as an indorser of the note, and that in consequence of that neglect this suit was brought in which he seeks to collect his debt. The action was originally framed in assumpsit, the declaration containing three counts. At the second term the presiding justice allowed an amendment of the writ by striking out the three counts in assumpsit and substituting therefor a count in case for deceit. To the allowance of this amendment the defendant’s counsel seasonably objected, on the ground that it changed the form as well as introduced a new cause of action. The case is before us upon exceptions as well as report. I. The first question, and one of vital importance, is, whether this amendment was allowable. We think it was not. Our attention has been called to no case under our system of practice that goes to the extent of authorizing the court to allow an amendment which changes the nature of the action from assumpsit to tort. The case of Rand v. Webber, 64 Maine, 191, was never intended to authorize amendments to the extent of allowing the form or nature of the action to be changed. Upon examination of the facts in that case, it will be found that the amendment there was but the correction of an error in the writ, the correction of an amendment (improperly made) to the original declaration, so as to restore the declaration as originally framed and prevent a change in the nature of the action from what seemed to be its form as originally drawn, and to escape [494] the statute of limitations that might be pleaded to another suit. The original count was more in the nature of deceit than assumpsit, and the last amendment was but a restoration to its former self — the spirit taking on form "in the furtherance of justice.” "As the special count stood,” say the court, "it could easily be amended so as to have been an action of deceit.” In Dodge v. Haskell, 69 Maine, 429, 434, this court, in referring to Rand v. Webber, supra, remarked that it "has been erroneously supposed to allow an amendment to the extent of allowing the nature of the action to be changed. That case merely allowed a correction of the writ, already improvidently and improperly amended, that such a result might be avoided.” In the present case, the change is absolute from assumpsit to an action on the case for deceit. It is not a restoration of form as originally drawn. The cause of action, as originally stated, was clearly and distinctly set forth in appropriate counts based upon an alleged promise. There was no defect to be amended, or correction of the cause of action as originally stated, as in Rand v. Webber, supra. The amendment was not the correction of a defect in pleading, but the addition of a cause of action not set forth in the original declaration, as well as a change of the nature of the cause of action. This was clearly wrong. While the greatest liberality is allowed in the matter of amendments, the authorities are abundant and uniform, that no new cause of action can be introduced by way of amendment against the objection of the defendant. In Houghton v. Stowell, 28 Maine, 215, it was held that a change in the form of action from debt to case was unauthorized, and that the court had no authority to allow it. A fortiori, in the present case, would it be unauthorized to allow an amendment which changes the nature of the action from assumpsit to an action on the case for deceit. The plea of the defendant in the former case is "never promised,” while in the latter, it is "not guilty.” At common law the court had no power to allow an amendment which introduced a new cause of action. Com. Lawr PI. § 142. Nor has this been extended by statute in this State. Farmer v. Portland, 63 Maine, 46; [495] Cooper v. Waldron, 50 Maine, 80. Neither can counts which are in form ex contractu be joined with those in form ex delicto. Corbett v. Packinton, 6 Barn. & Cress. 268; 1 Ch. Pl. 201*. Unless this rule is observed confusion would arise in the forms of pleas and judgments which the different forms of actions require. The remedies and forms of action which have been afforded to parties, and which have been sanctioned by long usage and approved by the highest authorities, should be adhered to, and it is not the province of the court, upon reasons of supposed convenience or occasional hardship, to dispense with them, and to substitute one for another, varying the rights of one or both of the parties. II. But notwithstanding the result to which the court may have arrived upon the amendment to the writ, the plaintiff claims to recover upon the alleged false and fraudulent misrepresentations made by the defendant in reference to the financial responsibility of the maker of the note at the time the trade was concluded. We have examined the report of the evidence and feel satisfied that instead of relying upon the statements of the defendant and being deceived thereby, the plaintiff relied upon the defendant as an indorser to pay the note when it became due ; and had he pursued the course prescribed by law in regard to negotiable paper, this suit would never have been instituted. Having failed to comply with the law in not giving notice of the dishonor of the note, and thus lost his claim upon the defendant as an indorser, this suit is brought upon the alleged misrepresentations of the defendant. The evidence, however, in our opinion, does not sustain the plaintiff in this position. He testifies, in substance, that the defendant said he could not trade because the plaintiff asked so much "for boot,” and wanted to know if plaintiff would take a note and he replied that he could get along if the defendant had a good one. Defendant said he had one against Joseph Frost. Plaintiff told him he didn’t know anything about him, and asked defendant if he would not give him his. The defendant replied [496] that he would rather let the note go. The plaintiff asked what Frost’s business was, and to this defendant replied that he owned a stage line and a farm, and was perfectly good. To this the plaintiff replied, that if he was perfectly good and he could have his pay without running round, — no trouble,— he would take the note if the defendant would put his name on it. In the house while looking for a pen, plaintiff says that the defendant said: "It won’t make any difference wdth the note, it won’t do any good if I put my name on it.” "I says, I guess we will have your name on it, and he put his name on it.” The defendant’s testimony is substantially this. "He asked me about Mr. Frost, and I told him as far as I knew,...... that I took the note supposing the note was good, and that Frost said, when I took the note, that he was driving the stage line and expecting to get the money to pay for the horse that I let him (Frost) have out of driving the stage......and wanted me to wait a year for the pay for the horse, or I could have half of it in June, and then the balance of it for the year.” He says further in answer to plaintiff’s inquiry, Mr. Flanders, I don’t know anything in particular about this man, but I suppose it is good.” He also testifies that the plaintiff said : "I don’t know this man very well, but if you indorse the note, I will take it,” and thereupon he indorsed the note, delivered it to the plaintiff and the trade was concluded. From the terms of the stipulation in the report, the entry should be, Exceptions sustained. Judgment for defendant.