Huffer v. Riley

Gill, J. This suit originated in a justice’s court, and the amount involved is $45, the agreed price of a buggy and set of harness sold by the plaintiff to defendant. The cause was tried before the justice of the peace, where plaintiff had judgment; the defendant appealed, to the circuit court, where on a trial before the court plaintiff again had judgment in his favor, and defendant thereupon appealed to this court. I. The first error alleged relates to the action of the circuit court in permitting plaintiff to amend his complaint by adding and inserting the words, “and set of harness,” to the word buggy as it appeared in the original statement. The evidence, beyond dispute, shows that Mrs. Riley, the defendant, bought from plaintiff a buggy and set of harness at an agreed “lumping” price of $45 for the two articles, but in drafting the original complaint the set of harness was omitted and only the buggy named. In allowing this amendment the court did not err. Section 6347, ( R. S. 1889), expressly provides that amendments may be made in the appellate court to supply any deficiency of omission therein, but no new item or cause of action not embraced or intended; to be included in the original account or statement shall be added by such amendment. In this case it was evident and apparent that plaintiff intended to sue for the whole of the property sold to [481] defendant. There was only one sale made, which embraced both buggy and harness, at and for the price of $45, no separate price or value being fixed on either. By an oversight, the statement filed with the justice failed to contain all the property sold and delivered in the one and only sale made, and on the trial in the circuit court the plaintiff was properly permitted to-amend by inserting the omitted item. Sprague v. Follett, 90 Mo. 547; Heman v. Fanning, 33 Mo. App. 50. II. It is further complained that the trial court erred in rendering a judgment against defendant, for the reason that she was shown to be a married woman. Under the circumstances of this case the court was clearly correct in this regard. Although the defendant Mrs. Riley is, and was at the institution of this suit and at the time of the purchase of the buggy, a married woman, yet, as the evidence shows that she was living separate and apart from her husband ; that Mrs. Riley resided at Carthage in this state while her husband was all the time domiciled in England, was a subject of-that government and never resided, in this country, she is to-be regarded as a feme sole in so far as to be able to contract, sue and be sued in her own name. She comes clearly within the exception named in the following' authorities: 2 Kent’s Com. 154, 155; Fose v. Bates, 12 Mo. 46; Gallagher v. Delarzy, 57 Mo. 36, 37: Music v. Dodson, 76 Mo. 628; Phelps v. Walther, 78 Mo. 323. No error appearing in the record, the judgment is affirmed. All concur.