Morrison v. Gardner

Opinion by Mr. Chief Justice Moore. 1. It is maintained that the original complaint did not state facts sufficient to constitute a cause of action, and, such being the case, the pleading could not be amended; and that by permitting the complaint to be altered, as hereinbefore indicated, new causes of action were introduced and errors thereby committed. Considering these assignments in the order given, an examination of the complaint, filed in the justice’s court, will show that it is stated, in effect, that plaintiff was induced by the defendant to examine a tract of land specified; that defendant then represented that it was suitable and desirable as a timber claim; that plaintiff examined a tract of good timber which was pointed out by defendant as the land so described; that, relying upon such representations, plaintiff applied at the local land office for the real property particularly specified; that in consideration of the services performed by defendant plaintiff paid him $204; that thereafter plaintiff engaged a surveyor who discovered that the land so described was not the real property indicated by the defendant, but was a tract almost barren of timber and unfit for any purpose; and that by reason thereof plaintiff had sustained damages in the sum of $204, which was demanded. Though the complaint is somewhat vague, it states enough in our opinion to show that the cause of action relied upon is a recovery of the damages asserted to have been received by reason of the defendant’s misrepresentation as to the identity of a tract of land. Instead of alleging that the real property described in the original complaint, which was pointed out by defendant as suitable and desirable as a timber claim and had good timber thereon, was worth [444] less for the purpose sought, it is averred that the surveyor found such tract to be almost wholly devoid of timber and valueless. This was setting forth the evidence relied upon for a recovery as to one part of the case, but as the original complaint does not appear to have been assailed, it states facts sufficient after judgment to constitute a cause of action for false representations. 2. The statute regulating the practice in circuit courts contains a clause as follows: “The appellate court may, in furtherance of justice and upon such terms as may be just, allow the pleadings in the action to be amended so as not to substantially change the issue tried in the justice’s court, or to introduce any new cause of action or defense.” Section 2247, B. & C. Comp. A substantial alteration in a pleading must be such a change as necessitates different proof to confirm the changed averments of a complaint or answer than that originally demanded: Liggett v. Ladd, 23 Or. 26, 38 (31 Pac. 81) ; Foste v. Insurance Co., 26 Or. 449, 452 (38 Pac. 617) ; Hume v. Kelly, 28 Or. 398, 407 (43 Pac. 380). In construing the enactment quoted, it has been held that on appeal to the circuit court the pleadings filed in a justice’s court may be amended when the alteration merely rearranges or more fully sets forth the facts originally stated: Dixon v. Johnson, 44 Or. 43 (74 Pac. 394). 3. The facts set forth in the amended complaints show that the cause of action stated in each pleading was defendant’s alleged false representations as to the land which he pointed out to plaintiff as the premises herein-before particularly described. We believe that the amendments allowed did not substantially change the cause of action originally stated, and that in permitting such alterations the circuit court did not abuse its discretion. [445] 4. It is insisted that the testimony received discloses that the defendant had located upon the land particularly described the plaintiff’s brother, who paid for the services so performed; that plaintiff never had any agreement with defendant whereby he was to be located on such premises, and that the evidence introduced was such a variance from the averments of the second amended complaint that an error was committed in denying the motion for a judgment of nonsuit. The plaintiff testified that he went with defendant and examined the land which the latter pointed out as the premises for which plaintiff’s brother had applied as a timber claim, but had not offered any proof in support of his entry; that prior thereto it had been agreed that, if the tract so described was satisfactory to plaintiff, the filing for the land would be relinquished to the United States, and plaintiff’s application for the premises could be made, and he would be relocated by the defendant; that the defendant pointed out to the witness a tree which he stated was a corner of the land particularly described in the original complaint, and from the angle thus indicated much valuable timber was growing on the premises; that it was after-wards ascertained that the tree referred to was 600 yards from the corner indicated; that more than 100 acres of the land applied for had been burned over, destroying the timber and rendering the premises valueless as a timber claim, in support of which proof could not have been made; that, relying upon such representations, plaintiff gave his brother the sum of money which he had expended in securing the land, his right to which he surrendered, and plaintiff applied therefor, paying defendant the remainder due on account of the prior application, whereupon defendant relocated plaintiff’s brother on other land; and that plaintiff had been damaged by reason of such false representations in the sum stated in the second amended complaint. The plaintiff’s [446] testimony was corroborated in most particulars by the sworn declarations of his brother. The testimony referred to was material and in our opinion sufficient to warrant the verdict returned, and no error was committed in denying the motion for a nonsuit. It follows that the judgment should be affirmed, and it is so ordered. Affirmed: Rehearing Denied.