Tuner & Dahnken v. Bauer

[312]

RICHARDS, J.

This is an appeal by the defendant from a judgment in favor of the plaintiff, and is taken upon the judgment-roll alone.

The appellant contends that the court erred in overruling his demurrer to the plaintiff’s original complaint. The record discloses that at or after the trial the original complaint was superseded by an amended complaint, filed b3>- permission of the court in order to conform the plaintiff’s pleading to the proofs in the case. This being so the error, if any, of the court in not sustaining the defendant’s demurrer to the original complaint became immaterial, and will not be reviewed upon this appeal, unless it should also appear that the court erred in permitting such amendment for the reason that a new cause of action was sought to be substituted for that set forth in the original complaint and against which the statute of limitations had run. An inspection of the record satisfies us that no new cause of action was embraced within the amended complaint. The original complaint counted upon a claim for the sum of $684,85, alleged to be due as the agreed price of a certain moving picture film service, alleged to have been furnished by plaintiff to the defendant at his special instance and request, and which said sum he promised to pay to plaintiff on demand. The amended complaint counted upon a claim for the sum of $496.95, alleged to be due as the reasonable value of said moving picture film service supplied by plaintiff to defendant at the latter’s special instance and request. It is evident that said counts refer to the same transaction; and our courts have held frequently since the early case of

Cox

v.

McLaughlin,

76 Cal. 60, [9 Am. St. Rep. 164, 18 Pac. 100], that an amendment which changes the count from one upon an express contract to one upon

quantum meruit

does not substitute a new cause of action.

As to the appellant’s contention that the amended complaint fails to state a cause of action, we think it without merit.

The appellant’s next contention is that the findings of the court are not responsive to the issues presented either by the original or amended pleadings. Our only recourse for the facts of the ease is to the findings since this is an appeal upon the judgment-roll alone. By reference to these it fairly appears that on May 1, 1911, the plaintiff and the defendant made an oral agreement, by which the plaintiff agreed to