Vibbard v. Roderick

Johnson, J. The nonsuit, when the plaintiffs rested their case, was properly denied. The defendant had then admitted that the plaintiffs were the payees named in the note, and it had been proved that the body and signature of the note were both in the defendant’s handwriting. There was nothing attached to the signature to indicate that the defendant had signed the note as the agent of any other person, and the presumption arose that it was his note. The amendment to the complaint allowed upon the trial was the insertion therein of a count for goods sold and delivered, which formed the consideration of the note, as the evidence had then disclosed. The defendant’s counsel objected that the plaintiffs had no right to amend, on the ground that the amendment asked for was a new cause of action, which the defendant was not prepared to try. The amendment was then allowed, and made, and the defendant’s counsel excepted. There was no error in this. The court had the right to allow the amendment, according to all the cases, and the express provisions of section 73 of the Code. The amendment was clearly in furtherance of justice, and did not change, substantially, the claim of the plaintiffs. The substantial claim of the plaintiffs was the indebtedness arising from the sale of the goods, which was supposed by them to have been [628] liquidated to that extent, by the making and delivery of the note, which was the cause of action stated in the complaint. Upon the trial the authority of the person who drew and signed and delivered the note, to make it and bind the defendants thereby was disputed. If the noté did not operate as a liquidation of the account for the goods purchased, and a payment, sub modo, then the indebtedness existed in the form of the account, which was permitted to be inserted in a new count, to prevent a failure of justice in the action. As the amendment did not change the plaintiffs’ claim, substantially, which was an existing indebtedness for property sold and delivered, and only operated to conform the pleading to a state of facts which the evidence had already disclosed might possibly exist, the amendment was clearly authorized, and no case can be found to the" contrary. (New York Ice Company v. Northwestern Ins. Co., 23 N. Y. Rep. 357. Russell v. Conn, 20 id. 81. The Bank of Havana v. Magee, Id. 355. Lounsbury v. Purdy, 18 id. 515. Harrington v. Slade, 22 Barb. 161. Dunnigan v. Cummey, 44 id. 528. Troy and Boston R. R. Co. v. Tibbits, 11 How. Pr. 168. The Cayuga County Bank v. Warden, 6 N. Y. Rep. 19.) The court having the power to grant the amendment, the terms upon which it should be allowed were whólly discretionary, and are not subject to review upon exception. ( Van Ness v. Bush, 22 How. Pr. 481.) But if this were otherwise, it was clearly a case where it was proper to allow the amendment without terms and allow the trial to proceed. It must have been apparent that the defendants were as well prepared to defend the claim of indebtedness upon the account as upon the note. If they were not, they could have shown it. But they did not show any thing on the subject, nor offer to do so : and there is no reasonable ground to complain that the discretion of the court was not fairly and discreetly exercised. [629] There is a class of amendments which, it has been held, the court has no right to make or allow, upon a trial or afterwards, by way of conforming the pleadings to the facts proved. That is where the amendment changes “ substantially the claim or defense,” as where the am end-mend would change tlie claim from tort to assumpsit, or from an action of assumpsit to an action to reform a written agreement. ■ (Walter v. Bennett, 16 N. Y. Rep. 250. Bush v. Tilley, 49 Barb. 599. Whitcomb v. Hungerford, 42 id. 177.) But those cases do not apply here. All the change here, was such only as was necessary to enable the plaintiffs to recover the same debt, whether it existed in the form of a note, or an account. It was no substantial change of the claim. When the evidence on both sides was closed there was clearly enough in support of the complaint to submit to the jury on the question whether the defendant was not in fact a partner and member of the firm; and if not whether he had not held himself out to be such, in such a manner as to estop him from denying that he was such partner and member. His declarations, letters and acts in giving and making notes for the settlement of claims against the firm were sufficient to prevent the case from being taken from the jury. There was no error in the charge. If the defendant was a member of the firm he was of course liable. But if he was not, but had held himself out to the plaintiffs and to the public as a partner, so that the plaintiffs dealing with the firm had reason to believe and did believe he was a member, and on the faith of his representations trusted the firm, he would be estopped from denying that he was a partner and liable upon that ground. This is what the learned judge charged. It was not necessary that the defendant should have declared in express terms that he was such partner; if he held himself out to be [630] such iu other ways calculated and intended to induce the belief of prudent business men, that is enough. There was no error in the refusals to charge as requested. The judgment must therefore be affirmed. J. C. Smith, J. concurred.