Moran v. Bentley

Baldwin, J. The advice given by this court when this [627] cause was before it on a former occasion was, that as the pleadings then stood the plaintiffs were not upon the facts found, entitled to a judgment for an accounting. Moran v. Bentley, 69 Conn. 392, 404. Their allegations were that Bentley was a partner; the finding was that, as between him and them, he never was. That he occupied the relation of a partner as to others, did not entitle the plaintiffs to hold him as such, in contravention of their express agreement. The variance was a material one. Any amendment of the complaint sufficient to avoid it, which might be allowed, would therefore necessarily be a material amendment, and, as was stated in our opinion, would entitle the defendant to file new pleadings and contest the new case so presented. Whether, under these circumstances, the first motion of the plaintiffs for leave to file such an amendment could have been absolutely denied, or whether its denial without prejudice, upon the grounds stated in the memorandum of decision, could be the subject of review upon appeal, it is unnecessary to determine. Those grounds were that, while a suitable amendment to cure the variances should be allowed, that thus presented departed from the facts found, as to the transactions occurring after the dissolution of the New London Lumber Company. Two paragraphs of the first count of the complaint which the plaintiffs sought to substitute for their original one, were pointed out as inconsistent in this respect with the two corresponding-paragraphs of the finding; the court observing that there was “ no need of the marked variations in statement ” by which they were characterized. The averments to which objection was thus made were, that after the dissolution of the company Bentley received the proceeds of lumber sold by it, for which it was his duly to account, but he had never accounted; and that he had also previously received property belonging to the company, the value of which he agreed to apply upon its indebtedness to him, but never did. At the following term, before another judge, the plaintiffs asked leave to file another “ substitute complaint.” This was substantially the same as the first count of that previously [628] presented, except that the two paragraphs which had been pointed out as objectionable were replaced by two as to the same subject-matter, in which the finding of the court was precisely followed. The motion was denied on the sole ground that the amendment thus proposed was not such a one as should be allowed under the ruling made at the previous term. A comparison of the two complaints thus successively presented shows that the latter only varies from the former in being confined to a single count, and by omitting in that precisely what the court had said should be omitted, and adding precisely what the court had said should be added. The refusal to allow it to be filed was therefore placed upon a ground that was untenable in law. Being based, not on the exercise of an independent discretion, but solely on an erroneous construction of the former ruling, to which it was the object of the court to conform, it is a proper subject of review in this proceeding. Such is not the case as to the subsequent order upon the motion for leave to file the third “ substitute complaint,” denying this because, among other things, it came too late. The memorandum of decision made by the judge who denied the first motion for leave to amend, shows that he was of opinion that no amendment should be permitted under which there could be further litigation over certain questions already settled: such as that Mr. Bentley had never been a partner with the plaintiffs, or about the business or transactions of the New London Lumber Company, or that at the- time that company was dissolved the plaintiffs were indebted to Mr. Bentley, and that they sold him at that time and at an agreed price all the stock of lumber then on hand and owned by the company; while there were other matters, including the balance of indebtedness which existed upon the sale, whether from or to the plaintiffs, and the amount of the collections which had been made since and had gone into the possession of Mr. Bentley, which had not been adjudicated or settled. As to any amendment by which these latter facts might be tried the court said the denial of the motion should be with [629] out prejudice. It seems to us that the second substitute complaint came fairly within the ruling then made. It does not afford the plaintiffs any opportunity to retry the matters which the ruling said should not be retried, while it does afford them an opportunity to litigate those matters which had not been decided. We think that amendment should have been allowed. It is contended by the appellees that the second “substitute complaint ” could not properly have been entertained, because it set up a new cause of action. This is taking too technical a view of the matter in controversy. The subject of the original complaint was a certain transaction between the plaintiffs and the defendant's intestate connected with the formation of the Hew London Lumber Company. The same transaction was the subject of the substitute complaint, though it was presented by a different mode of statement, founded upon a different view of its legal consequences. Johnston v. Sikes, 56 Conn. 589 ; Lovell v. Hammond Co., 66 id. 500, 507. There is error, the judgment is set aside, and the cause remanded, with directions to vacate the order denying the second motion for leave to amend, and to enter an order granting the same. In this opinion the other judges concurred.