Barrett v. Mason

Atkinson, J. 1. C. R. Mason instituted an action of trover against Webb Barrett, to recover a described check on a bank, signed by plaintiff and made payable to defendant, alleged to be of the value of $50; and a described promissory note signed by plaintiff and made payable to defendant, which was alleged to be of the value of $150. In connection with the petition the plaintiff made the statutory affidavit for the purpose of requiring defendant to give bail. At the trial term the plaintiff offered an amendment to his petition, which alleged: “that since bringing this suit he has sold the mare received from deft, in consideration of said note and check sued for at and for the sum of $100, which 'was her market value. Plff. further shows that he demanded of deft, his check and note, and tendered to deft, said mare, which was refused by deft. Plff. sues for the difference between $200 check and note and price of mare.” Held, that the allowance of the amendment over objec tion was erroneous. 2. The error in allowing the amendment entered into the further trial of the ease; and the plaintiff having recovered a verdict, and the defendant having made a motion for new trial and filed a bill of exceptions, assigning error upon the judgment refusing a new trial, and upon the judgment allowing .the amendment, the judgment of the trial court is Reversed. All Ihe Justices concur, except Fish, G. J., absent.