Harris v. Robinett

RICHARDS, J.

This is an appeal from a judgment in plaintiff’s favor in an action brought to recover upon an assigned claim for merchandise sold and delivered. The original complaint was for the recovery of $1,035.38, claimed to be due the plaintiff’s assignor as a balance upon an open book account. The plaintiff recovered judgment upon that complaint and the issues joined thereon; but upon appeal said judgment was reversed and a new trial ordered.

(Chandler

v.

Robinett,

21 Cal. App. 333, 334, [131 Pac. 891].) Upon

[283]

the retrial of the case the plaintiff, over the defendant’s objection, was permitted to amend his complaint by adding a second count thereto alleging an account stated. The judgment was again in plaintiff’s favor, and from it the defendant has again appealed.

The first contention urged by the appellant is that the court erred in permitting the plaintiff to amend his complaint by adding to it a cause of action on an. account stated, upon the ground that this constituted a new cause of action, against which the statute of limitations had run.

We find no merit in this contention. It is admitted that both the original complaint and the amendment thereto refer to the same transaction, and that each is for the recovery of the same indebtedness arising out of said transaction. This being conceded, no new cause of action is stated by the amendment to the original complaint.

(Union Lumber Co.

v.

J.

W.

Schouten & Co.,

25 Cal. App. 80, [142 Pac. 910];

Born

v.

Castle,

22 Cal. App. 282, [134 Pac. 347];