Western Cornice & Manufacturing Works v. Meyer

Harrison, C. J.

Tbe plaintiff commenced this action before a justice of tbe peace in Douglas county, and alleged in tbe bill of particulars that tbe defendant, and others impleaded as defendants, and each of them, were “indebted to tbe plaintiff for wort, labor, and material furnished at defendant’s special instance and request” in a stated sum. Tbe plaintiff was successful, and tbe cause was appealed to the district court, where, in tbe petition filed, tbe asserted cause of action was set forth in tbe same language as in tbe inferior court. Of some portions there were somewhat more specific statements, and tbe account was pleaded in itemized form. For tbe defendant in error there was filed a general denial. There were answers for others of defendants, but we need not further notice them, for as to all of them, except Max Meyer, tbe defendant in error, tbe case was before trial, on motion of plaintiff, dismissed.

At tbe time of or during tbe trial in tbe district court it became apparent that tbe plaintiff was n'ot tbe owner of tbe account in suit as tbe original creditor, but claimed by or through an assignment or transfer thereof from tbe “Western Cornice Works, 0. Specbt, proprietor;” and for the plaintiff there was a motion that be be allowed to amend tbe petition so that it would declare on tbe account in flavor of tbe plaintiff as assignee of the account, or owner thereof by transfer from tbe business concern which bad performed tbe labor and furnished tbe material as Shown in tbe account in suit. This motion tbe court overruled, or refused to allow tbe amendment; also excluded evidence of tbe assign- *442 meat or transfer of 'tibe account, and at tbe close of tbe evidence for plaintiff (tbe trial was to tbe court, a jury bad been waived) dismissed tbe action for tbe reason that tbe plaintiff bad failed to prove tbe cause stated in tbe petition.

In error proceedings to this court tbe plaintiff urges that tbe trial court erred in tbe refusal to allow tbe petition to be amended, also in tbe exclusion of tbe evidence of tbe change of ownership of tbe account, and in tbe resultant judgment of dismissal. To recover on the account as assignee or owner thereof by transfer or change of right and title from tbe original creditor to it tbe plaintiff must have pleaded and proved tbe assignment, transfer, or change. It was an issuable fact, without plea or proof of which tbe plaintiff could not succeed. (Henley v. Evans, 54 Neb. 187 ; Hoagland v. Van Elten, 22 Neb. 681 , 23 Neb. 462 , 31 Neb. 292 .) That tbe court did not permit tbe petition to be amended as requested was not improper. To have allowed tbe amendment would have made elemental of tbe cause of action tbe plaintiff’s right to recover by virtue of the transfer to it of another’s right. Tbe suit, as amended, would not have been, as commenced, one to recover for work done, etc., by tbe plaintiff, but would have been to recover because for a consideration tbe plaintiff bad succeeded to tbe right of another party; this would have been a substantial change in tbe cause of action, hence tbe amendment was not allowable; it would have been tbe substitution of a different pleading. (Clarke v. Omaha & S. W. R. Co., 5 Neb. 319 ; Dietz v. City Nat. Bank of Hastings, 42 Neb. 584 ; Harrington v. Wilson, 74 N. W. Rep. [S. Dak.] 1055.) Further than this, to have permitted tbe partition to be changed in tibe manner proposed Avould have presented different issues for trial in tbe district or appellate court than were tried in the court in which tbe action was instituted. This may not be done. Causes must be tried on appeal to the district court on tbe same issues as in tbe court from which appealed. (Darner v. Daggett, 35 Neb. *443 695 ; Spurgin v. Thompson, 37 Neb. 39 ; Lee v. Walker, 35 Neb. 689 ; Bishop v. Stevens,. 31 Neb. 786 ; Fuller v. Sell roedor, 20 Neb. 636 .)

The petition, by fair construction, was a declaration on an account in favor of the plaintiff as the original creditor. It is evident from the tenor of the motion of plaintiff’s counsel to amend it that he so construed and considered it, and as no assignment or transfer of the account was pleaded, evidence of either was properly excluded; and had it been received and a judgment for plaintiff rendered thereon, when viewed in connection with the petition, the judgment must have been set aside as unsupported by the petition. (Thompson v. Stetson, 15 Neb. 112 .) The judgment of the" district court was right and must be

AFFIRMED.