Acquital v. Crowell

[192]By the Court,

Hastings, Ch. J. This action was instituted in the name of Acquital, complainant, against the defendants, for the recovery of $6709,50 for Sandwich Island potatoes sold to one of the defendants on board of the schooner Elizabeth, by sample.

The plaintiffs on the trial having examined several witnesses, closed, and the defendants moved for a nonsuit, on the ground that no evidence had been introduced as to the quantity and value of the potatoes. Whereupon, the plaintiff, Acquital, introduced the following paper in evidence :

“ Sold for account of Captain Acquital to Mr. --McDowell, “ two hundred barrels Sandwich Island potatoes, as per sample, “ at the rate of eighteen cents per pound, to be taken from the “ ship’s tackles. The potatoes to be in sound and merchantable “ condition. Payment by cash on delivery of potatoes.

(Signed) “ Acquital.

“ Thomas McDowell.

“ E. Bouegeoise.”

The defendants again insisting upon a nonsuit for the reason that the contract was in writing, and there being a non-joinder of parties plaintiffs, and a misjoinder of parties defendants, the plaintiffs were permitted to amend, by adding the name of Bourgeoise as co-plaintiff.

Could the plaintiffs thus amend, and was the variance between the complaint and proof fatal? The 64th sec. of the Practice Act provides that no variance between the allegation in a pleading and the proof shall be deemed material, unless it have actually misled the adverse party to his prejudice in maintaining his defense on the merits, and if so proved, the pleadings may be amended on such terms as shall be just.

By the 68th sec., the court may at any time, in furtherance of justice, and on such terms as may he proper, amend any pleading or proceeding by adding or striking out the name of any party.

It will be perceived by an examination of the sections of the statute referred to, and other sections of the same statute in relation to amendments, that the plaintiff has the right to amend [193]