Whitcomb v. Hungerford

Ceebke, J. I. The original complaint alleges the conversion of the mare, by the defendant, and demands damages “by reason thereof.” This, therefore, is an action ex delicto; and, in order to sustain it, it wras necessary to show, by the contract, that the plaintiff was entitled to the possession, at the time of the alleged conversion. The contract, however, is .clearly a contract to sell and give possession to the plaintiff at a future day, on the payment of $900. In short, it is an executory and not an executed contract. It does not transfer or convey the property and possession in prcesenti, but in effect promises to do so on the happening of a future event, at a specified time. This is too plain to require any reference [185] to authorities, which are innumerable. One will suffice. (Joyce v. Adams, 4 Seld. 291.) The plaintiff in this case was to forfeit the $100 paid as a deposit if he should not within thirty days pay the remaining $900, and of course to have no claim to the mare. Even if we regard this contract as amounting to a conditional sale, it would not give the plaintiff a right to maintain an action for her conversion. The title does not vest in the purchaser until the conditions are complied with. (Van Buskirk v. Purinton, 2 Hall, 561.) The provision in the contract that Whitcomb was to pay the expenses of keeping the mare while in the possession of Woodruff, makes no difference. This was a part of the terms or consideration of the sale; one of the conditions which the plaintiff was to perform, before the title could pass to him. Even if he was allowed by the contract to take the mare into his own possession, and keep her in his own stable, it may well be doubted whether, under the conditions of this contract, this would be deemed an absolute sale. On the evidence, therefore, the action for damages for conversion could not be maintained. Without a right at least to the possession of a thing, this kind of action is not maintainable. II. Had the justice, at the trial, the power to grant an amendment of the complaint changing the action from one ex delicto to an action ex contractu ? It is not necessary to dwell upon the hardship to the defendant of allowing the plaintiff to do this after the trial under the original complaint was completed, and the case reserved for a decision, without giving the defendant an opportunity of a defense under the new aspect of the case; for it is certain that the justice had no power whatever to grant the amendment, under such circumstances. An amendment which will change the form and nature of the action from tort to assumpsit cannot be granted, after the whole case is finished. (Ransom v. Wetmore, 39 Barb. 104.) I do not think, indeed, that the amendment would have been allowable at any stage of the trial. As [186] in Walter v. Bennett, (16 N. Y. Rep. 250,) the variance was not one which could be disregarded, or amended, under the code of procedure, but is a failure to prove the alleged cause of action, not in some particulars only, but in its entire scope and meaning. [New Yoke Gekerai, Term, May 2, 1864. The judgment should be reversed and the complaint dismissed, with costs. Leonard, P. J. The case in 16 New York Reports, page 250, is conclusive against the power of the judge to grant the amendment which he did. There must be a new taial, I think. We have not the authority to dismiss the complaint. (Code-, § 330.) The judgment should be reversed, and a new trial ordered, with costs .to abide the event. Geo. G. Barnard, J. concurred. Judgment reversed. Leonard, Clerlee and George G. Barnard, Justices.