Partridge v. City

By the Court, Rhodes, J. 'This is one of the class of cases usually called the City Slip Cases. The complaint contains two counts: the first being for money had and received by the defendant to and for the use of the plaintiff; and the second, for money paid, laid out and expended by the plaintiff for the defendant. Suit was commenced in April, 1855, and was brought on to trial in 1863 ; and on the 23d of June, 1863, the finding of the Court for'the defendant was filed, and on the 2d of February, 1864, judgment was entered nunc pro tunc as of the 27th' of February, 1863. The plaintiff moved for a new trial, and the grounds of the motion were, first, “ Errors of law occurring on the trial of said cause and excepted to by the said plaintiff;” and second, “ That the said decision was against law.” The motion and statement were filed August 22d, 1863, and the motion being denied, the plaintiff, on the first day of October, 1863, appealed from the order denying the new trial and from the. judgment.

The plaintiff now assigns for error the . decision of the Court refusing to permit him to amend his complaint.' It appears from the papers copied into the transcript that the plaintiff, upon his affidavit filed April 12, 1862, moved the Court for leave to amend his complaint; and that the motion was denied May 31,1862. It appears also from the statement on the motion for a new trial, that William H. Taylor purchased the lot, that the deed was executed to him, and that he paid the purchase money which is sought to be recovered back by the plaintiff; that “on the 10th day of March, 1855, [417]William H. Taylor assigned his right of action to plaintiff; ” and that, on the testimony being closed, the defendant’s counsel insisted that there was á material variance between the case presented by the pleadings and the evidence, the complaint alleging that the defendant received the money to the use of the plaintiff, and the evidence tending to prove that it was received to the use of Taylor. The statement proceeds :

“ The plaintiff’s counsel contended that the variance should ■be disregarded, or that he should be allowed to amend. The Court ruled that it- could not entertain a motion to amend, it appearing that the plaintiff had moved for leave to amend in the particular named, in the Twelfth District Court, while said action was pending regularly therein, and before said action was transferred to this Court, and that said motion had been denied by said .Twelfth District Court. The Court then took the cáse under advisement, and afterwards rendered the decision that the said variance was fatal, and therefore directed a finding for the defendant, to which decision the plaintiff excepted.” This is all that is contained in the statement respecting the proposed amendment.