Oden v. Bonner

CLOPTON, J.- — -This suit was originally against appellant and W. L. Brown, as late partners. The original complaint contained two common counts; one on an account stated, and the other fo'r goods and merchandise sold and delivered. On the trial, and after the testimony was concluded, plaintiff, by leave of the court, amended the complaint by striking out the name of Brown and the words, “late partners under the firm-name of Oden & Brown,” and also by adding three counts, each declaring on a separate note made by Oden & Srygley. Defendant objected to the last amendment, on the ground that it introduced new causes of action. In the itemized statement of the account stated, the three notes declared on in the -amendment appear as items in the account. The complaint was evidently amended because of the failure to show that Oden & Brown had assumed the liabilities of Oden & Srygley. The record authorizes the presumption, that the original complaint and amendment were intended to present the same cause of action, only varying the form of the liability of defendant. There does not appear the introduction of a new cause of action. Defendant objected to the introduction of the notes in evi [396] dence, on the ground of a variance between the notes offered and those described in the amendment. It is well settled, that a partnership creditor may sue one of the members of the firm, for a debt contracted in, the partnership name, whether by account or otherwise, and declare upon the demand as his individual liability — Clark v. Jones, 87 Ala. 474. This was the state of the original complaint after being amended. The objection to the admission of the notes in evidence was general, going to their inadmissibility under the entire complaint as amended. Proof of the partnership of Oden & Srygley, and the execution of the notes by that firm, having been made, thej7’ were admissible under the common count on an account stated, notwithstanding there may have been a variance between the notes offered and the description in the [amendment to the complaint. In $uch case, the court could properly overrule the objection and the motion to exclude the notes. Affirmed.