Mountain States Creamery Co. v. Tagerman

GIBSON, C. J.

Defendant Tagerman has appealed from a judgment against him, and his principal contention is that the trial court erred in permitting plaintiff to file an amended complaint to conform to the proof.

The original complaint alleged that defendants Tagerman and Garrett were partners, doing business under the name of the Garrett Distributing Company, that between February 6 and March 5, 1948, plaintiff sold and delivered to defendants certain goods in the total amount of $8,716.50, and that no part thereof was paid except the sum of $2,076.50, leaving a balance due and owing plaintiff of $6,640. It was

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also alleged in separate counts that defendants were indebted to plaintiff for the balance due upon an open book account and an account stated.

When the case was called for trial, plaintiff was given permission, over Tagerman’s objection, to file an amended complaint alleging that the goods were sold to Garrett while he was doing business as an individual, that thereafter, on March 17, 1948, Garrett formed a partnership with Tagerman, and that as part of the consideration for the transaction Tagerman promised to pay the debt due plaintiff. Tagerman at first acquiesced in the filing of the amendment and then sought a continuance in order to file a demurrer, whereupon plaintiff’s counsel withdrew the amended complaint but announced that he would later ask leave to amend to conform to proof. The trial proceeded on the original pleading, and over Tagerman’s objection the court admitted evidence that he entered into a partnership or joint venture with Garrett and promised to pay Garrett’s debt to plaintiff. At the close of its case, to conform to the proof, plaintiff was permitted to file an amendment setting forth substantially the same allegations as the amended complaint which was withdrawn at the beginning of the trial.

Tagerman then presented his defense and denied that he had agreed to assume the debts of Garrett as alleged in the amended complaint but testified that the agreement was that the debts should be paid out of the profits of the venture, if any. More than a month after the case was submitted, and before any findings were made, Tagerman made a motion to vacate submission and for permission to introduce additional evidence. He stated that the purpose of the motion was to permit him to meet and properly defend as to matters alleged in the amended complaint, and that the additional evidence was necessary in order that his rights might be fully preserved and protected. The motion was granted, the case was reopened, and Tagerman introduced his evidence. After resubmission of the case the court found and conducted that Tagerman had agreed to pay the balance of $6,640 due plaintiff. Judgment was entered accordingly.