Sharpe v. Columbus Iron Works Co.

Fish, C. J. (After stating the facts.) In the view we take of the case it is necessary to pass upon but one of the points raised by the assignments of error. This point is, did the court err in overruling the ground of the demurrer to the amendment, and of the motion to strike the same, that the amendment sought to add a cause of action ex delicto to one arising ex contractu. In our opinion the court did err in this respect. In the original petition the plaintiff sought to recover the balance due on certain promissory notes executed by the defendant and payable to the plaintiff’s order. While it was alleged in the original petition that the defendant had delivered to the plaintiff, as collateral security for such notes, other notes payable to the defendant, which latter [486] notes the plaintiff had redelivered to the defendant under an agreement that he was to collect the same and turn over the proceeds to the plaintiff, and that the defendant had made collections of such collateral notes and had refused upon demand to pay the same .to the plaintiff, there was no prayer in the original petition for a recovery for the collections. Such allegations may have been pertinent in view of the prayers for injunction and a receiver, but they would not authorize an amendment to the petition praying for a recovery of the value of the collateral notes on the ground that they had been fraudulently converted by the defendant to his own < use. The amendment set forth a cause of action essentially sounding in tort, that is, the fraudulent conversion by the defendant of collateral notes belonging to the plaintiff; and of course it needs no citation of authority to sustain the proposition that such a cause of action could not be joined in a case of this character to an action based on contract. Judgment reversed. All the Justices concur.