Milburn & Co. v. Davis & Tatnall

[362] Judgment reversed. After one of the plaintiff's had been introduced as a witness and his testimony partly delivered, the plaintiffs offered an amendment, alleging that, having entered into the contract with Symmons and he having failed and refused to pay for the loading of the cotton, the plaintiffs declined to go on further with the loading of the vessel; whereupon the master of the vessel entered into a contract with them whereby to enable him to carry out his contract of loading and to earn his freight money, and to avoid demurrage and delay, he agreed for and on behalf of the ship-owners, that from that date and for all cotton subsequently loaded he would pay the stevedore charges to plaintiffs, which they insist he had a right to do in the exercise of his duties as master, and bind the steamship and the owners. To this amendment the defendants objected because: (1) It was inconsistent, at variance with and in contradiction of the allegations of the declaration. (2) It set out a suit upon a contract made subsequently to the one declared on originally, and with another and independent person different from him with whom the contract sued upon was alleged to have been made. (3) It set up a new and independent cause of action altogether different from the one sued on. Crovatt & Whitfield, for plaintiffs in error. Goodyear & Kay and Symmes & Bennet, by J. H. Lumpkin, contra.