Kester v. Stokes

The opinion of the Court was delivered by Stroud, J.- It. is observable that in the first special count of the declaration filed, and in the first and third additional counts, no mention is made of the makers of either of the promissory notes ; and a similar omission exists also in the second and fourth additional counts as to the third note described in these counts ; nor is it stated when or where any of all such notes were made, or at what time they became due. These counts agree with each other, and with the other additional counts, in the several and aggregate amounts of the notes described in them. In the second and fourth additional counts the first two notes are said to be signed by the defendants, which though not the technical and appropriate word to designate their maker, would, in common parlance, so be taken to import. The first note in the second and fourth additional counts is stated to be drawn in favour of the plaintiff, and the second note in the same counts in favour of Thomas Powell, agent. And there is one allegation common to all the notes in each of the five special counts mentioned, as well those which are said to be signed by the defendants, as those the makers of which are not indicated, namely, that they came to the plaintiff by indorsement of the defendants, in payment of goods. As the additional counts vary from each other in so many particulars, it will be proper to examine the present application in regard to each of these, separately compared with the original special count. For, as respects the common counts, it is obviously unnecessary to bestow attention upon them in this inquiry. The settled construction of the amendment section of the act of [72] 1806 is, that any alteration may be permitted, consistent with the rules of pleading, which does not introduce a different and distinct cause of action from that originally declared upon. Smith v. Rutherford, 2 Serg, & Rawle 358; Cassell v. Cooke, 8 Serg. & Rawle 268 ; Rodrigue v. Curcier, 15 Serg. & Rawle 81 ; Diehl v. M’Glue, 2 Rawle 337; Proper v. Luce, 3 Penns. Rep. 65. Whenever, therefore, the proposed counts do but supply the imperfections of the original ones by the addition or modification of circumstances forming an essential part of the cause of action declared upon, they should be received. Great liberality must be indulged, or the law will be rendered nugatory, and the whole purpose of the legislature frustrated. What, then, is the cause of action originally declared upon 1 Stripped of technical language, it is simply this ; the plaintiff held three promissory notes, which he had received from the defendants by indorsement, and in payment of merchandize sold by him to them. The defendants agreed to deliver to the plaintiff, in exchange for these notes, goods of equal value, or as much money as the notes, ou their face, were worth. The plaintiff complied with his part of the contract, and gave up the notes to the defendants ; but the defendants, although a reasonable time had been allowed them for this purpose, had refused to comply with any part of their stipulations. The plaintiff’s obligation was fully executed; the defendants’ was still executory, although the time in which it should have been complied with had elapsed. What is the cause of action stated in the first additional count? It sets forth the same general facts of ownership by the plaintiff of the three promissory notes, which may be considered as identical with those mentioned in the original count: the mode by which he became possessed of them, and the resulting obligation of the defendants to pay them is, in like manner, implied: that the defendants agreed to deliver, in exchange for these notes, a specific quantity of goods, which the plaintiff was to sell and give them credit for the proceeds ; and if the sum for which these goods should be sold, and to the extent of which a credit was to be allowed, should fall short of the aggregate amount of the promissory notes, the deficiency was to be promptly supplied in money by the defendants. As in the original counts, the plaintiff avers that he performed his engagement, and gave up the notes ; that lie received the stipulated quantity of goods, which he sold for a certain price, which was much less than the amount due on the notes; that he allowed the proper credit on [73] this accoubt, and demanded the balance, but the defendants refused to pay it. Now, although there is a wide difference between these counts, both as to the terms of the agreement and the several breaches, yet the foundation and purpose of the agreement itself is the same in each, which distinguishes the present application, so far as relates to the first additional count, from Diehl v. M’Glue, and brings it fully within the principle of Proper v. Luce. In Diehl v. M’Glue, the only original count, bearing the slightest resemblance to the amendment, was that for work and labour, which was a common count, while the amended one was special, predicated upon a contract which remained unexecuted; the breach assigned being for not suffering the plaintiff to perform what the contract required of him, and what he was willing and ready to perform. In Proper v. Luce, the original declaration was in slander, and set forth circumstances which accorded, in substance, and, in some instances, verbally, with the amendment, but omitted a part which was essential to constitute a good cause of action, and which was supplied by the amendment. The first additional count ought, therefore, to be received. There is great want of perspicuity in the description of the promissory notes in the second additional count, and an apparent inconsistency; a part of the notes being stated to have been signed by ttté defendants, and drawn in favour of the plaintiff, and in immediate connexion it is alleged that all were drawn in favour of the defendants, and by them indorsed to the plaintiff. One is also stated to be drawn in favour of Thomas Powell, agent, and by him indorsed to the plaintiff. On the argument, the plaintiff’s counsel (who has manifestly laboured under great difficulties from not having possession of the notes) expressed a wish to add an averment that Thomas Powell, agent, was the agent of the defendants; and 1 shall therefore consider this averment as actually made, and forming a part of this count. As these notes correspond, in respect to their amounts, severally and collectively, with those mentioned in the original special count, and as in the latter count no maker of the notes is named, there is a sufficient resemblance in the description of the notes mentioned in the two counts, to authorize the conclusion of their identity. This count is, therefore, to be received upon the principle which was applied to the first additional count. But the third additional count introduces a cause of action wholly variant from that declared upon in the first original count. The [74] description of the three promissory notes is, indeed, similar, and the surrender of these to the defendants is tire alleged consideration moving from the plaintiff in both. But the plaintiff has incorporated in this additional count, the statement of an important transaction between the parties, of which no trace is found in the original count, and the undertaking of the defendants is made to depend essentially upon this new transaction; and, moreover, the breach of this undertaking, which consulates the plaintiff’s injury, is altogether repugnant to the breach complained of in the original count. The cause of action, which is to be collected from the whole count, and which is sought to be introduced through the medium of the new count, was, manifestly, not in the contemplation of the pleader when the original declaration was filed, a test, according to Rodrigues v. Curcier, which may always be applied, in relation to proposed amendments, with decisive effect. Newlin v. Palmer, 11 Serg. & Rawle 98, is not a stronger case than the present, and there, as here, the application to amend appears to have been made not on, but before the trial, a circumstance which is noticed, because, in some of the reported decisions, expressions are found intimating that the court would be bound to greater strictness in the former than in the latter contingency. On or before the trial are, however, the words used in the act of assembly; and I can perceive no warrant to justify a distinction in the particular adverted to. The act of the court, in either case, is alike the subject of revision by the supreme court. The remarks here made, in relation to the third additional count, have equal relevancy to the fourth. Both of these are, therefore, refused. Rule accordingly.