Myers v. Holton

TAGGART, J.

Appeal from judgment in .favor of plaintiff, from an order denying defendant’s motion for a new trial and from an order denying defendant’s motion to strike from the files an amended complaint filed by direction of the court after submission of the cause and before the findings and judgment were signed and filed.

The last order is not an appealable one, but an exception having been preserved to the ruling of the court, the matter is before us by bill of exceptions on the appeal from the judgment-roll. We see no error in denying the motion to strike out. Not only is the trial court warranted in directing an

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amendment to the pleading to conform to the proofs after submission, but the court should do so when it is necessary to prevent a mistrial.

(Hancock

v.

Board of Education,

140 Cal. 554, [74 Pac. 44];

Hedstrom

v.

Union Trust Co.,

7 Cal. App. 278, [94 Pac. 386].) There is nothing in the bill of exceptions showing that the amended complaint does not conform to the evidence introduced, and the same facts and promise are counted upon in the amended complaint that are alleged in the original complaint. The right to recover rests upon the same breach of the same contract.

(People’s Lumber Co.

v.

Gillard,

5 Cal. App. 440, [90 Pac. 556].)

In both complaints the plaintiff relies upon the promise of the defendant “to protect him in the matter of his commission,” because the defendant purchased the property on which plaintiff held an option. In the first complaint the amount prayed for is $3,500, the difference between the amount of his option and the sum for which defendant purchased the property; in the second, the commission sued for is measured by a percentage. This is not the statement of a new cause of action.