Foste v. Standard Insurance

Opinion by Mr. Justice Moore.

The statute provides that the court, in furtherance of justice, “may, at any time before the cause is submitted, allow a pleading to be amended, * * * when the amendment does not substantially change the cause of action, by conforming it to the facts proved”: Hill’s Code, § 101. The question presented is whether the amendment substituted another cause of action for that originally stated. An examination of the original complaint discloses an evident intention on the part of the pleader, (who was not the attorney appearing here for respondent, however,) to declare upon an account for labor and services performed by the plaintiff for the defendant, but as amended he has alleged a stated account between them. Courts should be liberal in allowing amendments, and when the cause of action is improperly set forth in the complaint, or a pleading is defective in any respect, the court may, in its discretion, at any stage of the case before the cause is submitted, authorize such amendments as may be necessary to make the case as intended by the original pleading, but not to insert a new and distinct cause of action or defense: Ford v. Ford, 53 Barb. 525 ; Davis v. New York Railroad Company, 110 N. Y. 646 , 17 N. E. 733 ; Baldock v. Atwood, 21 Or. 79 , 26 Pac. 1058 . Any amendment, therefore, which would have aided the complaint in stating the *452 facts constituting the cause of action as originally intended by the pleader, would have been permissible, and if any facts had been stated from which it could have been reasonably inferred that the pleader intended to allege a stated account, as well as an account for labor and services, and he had elected to rely upon the facts so stated, the court could, in its discretion, have allowed an amendment striking out the allegation of an account for labor, and services. The material allegations in an action on an account stated, are: (1) That plaintiff and defendant came to an accounting together; (2) that on such accounting defendant was found indebted to the plaintiff in a specified sum, (8) which defendant promised to pay, (4) and has not paid: 1 Estee’s Pleadings (3d ed.), § 617. The original complaint not containing any of these necessary allegations, it cannot be inferred therefrom that the pleader intended to allege a stated account, and hence he could not elect to rely upon what the pleading did not contain.

If it would require precisely the same evidence to support the action after an amendment as before, it cannot be said that a new cause of action has been substituted thereby. Lottman v. Barnett, 62 Mo. 159 . The converse of this rule must also be true; and therefore, if different evidence would be required to support the action after an amendment, it must be regarded as substituting a different cause of action. Applying this rule to the pleadings in the case at bar, we find that to support the action upon an account for labor and services performed under an agreement to pay a stipulated sum therefor, evidence of the contract of employment, the amount of labor and services rendered in pursuance thereof, and the amount due, and the nonpayment thereof, would be necessary; while the evidence necessary to support an action upon an account stated is that the parties mutually agreed upon a specified amount which was found to be due to the plaintiff from the de *453 fendant, and which he promised but had failed to pay. The evidence necessary to support the action after the complaint was amended was essentially different from that which was necessary before, and hence the amendment was the substitution of a new cause of action. The plaintiff could not recover upon a stated account without alleging it (Bump v. Cooper, 20 Or. 527 , 26 Pac. 848 ; Oregon Railway and Navigation Company v. Swinburne, 22 Or. 574 , 30 Pac. 322 ); and by relying in his complaint upon the original transactions, he treated the account as open, and it was error to allow the amendment alleging a stated account, which substantially changed the cause of action, for which the judgment is reversed and a new trial ordered.

Reversed.