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District Court of Appeal, Second District, Division 1, California.


Civ. 18303.

Decided: November 21, 1951

David C. Marcus, Los Angeles, for appellant. George Penney, Los Angeles, for respondent.

The decision of this case turns primarily on the question whether the trial court abused its discretion in permitting an amendment of the complaint to conform to proof which was inadmissible under the allegations of the complaint.

The plaintiff below, respondent here, instituted an action against the appellant Tagerman and one Garrett. The complaint—in three counts—averred that at all times mentioned therein the defendants Tagerman and Garrett were partners doing business under the name of the ‘Garrett Distributing Co.’ The first count averred that between February 6th and March 5, 1948, plaintiff sold and delivered to the defendant partnership goods, wares and merchandise in the amount of $8,716.50 upon which, by reason of payments made thereon, there was due to the plaintiff $6,640. The second count averred there was due to plaintiff from the defendants on an open book account the sum of $6,640. The third count averred that the defendants were indebted to plaintiff in the sum of $6,640 on an account stated between February 6 and March 5, 1948. The defendant Tagerman filed a general denial. The undisputed evidence is that he was not a partner during the period mentioned and that the goods were sold to Garrett who operated under the name of the ‘Garrett Distributing Co.’

The case was originally called for trial on January 13, 1950, but was continued at the request of the plaintiff to March 23, 1950. At the opening of the trial on that date plaintiff sought permission to file an amendment to his complaint so as to set forth a fourth count alleging in substance that prior to March 17, 1948, the defendant Garrett was doing business individually under the name of the Garrett Distributing Co. and between February 6, 1948, and March 5, 1948, he became indebted to the plaintiff for goods, wares and merchandise sold and delivered to him, the balance of which aggregated $6,640; that thereafter on March 17, 1948, Tagerman and Garrett formed a partnership and that as a part of the consideration for the formation of the partnership Tagerman agreed to pay the outstanding indebtedness due to plaintiff from Garrett. Over apt objection by Tagerman the court permitted the amendment to the complaint to be filed, but after further colloquy with counsel the court indicated that it was of the view that counsel for Tagerman was entitled to demur to the complaint, as amended, and hence it should and would transfer the case back to the calendar department. At that stage counsel for plaintiff stated he was anxious to proceed to trial at once and hence moved that he be given permission to withdraw the amendment which was granted. He further stated he would move at the conclusion of the case to amend the complaint to conform to the proof he produced and would take his chance as to the ruling the court might then make.

The case then proceeded to trial on the issues made by the original complaint. Instead of confining the proof to the issues the court, over apt objection by counsel for Tagerman, permitted evidence on the issues which were made by the fourth count even though the issues which had been made thereby were no longer in the case. The evidence should not have been received and it was plain error to do so.

At the close of the plaintiff's evidence the defendant moved (1) to strike the testimony at variance with the issues made by the complaint and (2) for a nonsuit. The motions were erroneously denied. The plaintiff having rested his case, thereafter asked and was granted permission to file a supplemental complaint to conform to proof, i. e., alleging that defendant Tagerman had agreed to pay the obligation of Garrett to the plaintiff. This ruling was likewise erroneous.

Respondent appears to labor under the impression—an impression seemingly widely held—that if evidence is received by the court over objection which goes beyond the issues upon which the case is tried, it is not error for the trial court to permit a supplemental complaint to be filed to conform to the evidence admitted regardless of the fact that the pleading proposed introduces a new cause of action or substantially changes the cause of action sued upon. The notion is wholly erroneous. Von Goerlitz v. Turner, 65 Cal.App.2d 425, 150 P.2d 278.

The law necessarily contemplates that a large discretion must be given to trial judges to grant or refuse amendments to pleadings in the course of a trial. But the discretion given is a legal discretion to be exercised and guided by fixed principles of law. Stringer v. Davis, 30 Cal. 318, 322.

In the case before us it is plain that the fourth count proposed by plaintiff stated a separate and distinct cause of action of a character entirely at variance with the three counts set forth in the complaint. In that connection we observe that in Chapman v. Americus Oil Co., 117 Ga. 881, 45 S.E. 268, suit was brought upon an account for a stated quantity of cotton seed sold and delivered at a given price per ton. An amendment was offered, alleging that the defendant agreed to take the cotton seed, and deliver to plaintiff cotton seed meal, which he had failed to do; the amendment averring that, as a result of such failure, the defendant had become liable to plaintiff in a stated sum. It was there held that the amendment set forth a new cause of action, and was properly disallowed. Speaking to that very point the court said, ‘The amendment * * * clearly added a new cause of action, and was properly disallowed. The original suit was for goods sold and delivered by plaintiff to defendant. The amendment sought to recover for a failure to deliver goods bought by plaintiff from defendant.’ See also, Ivy Coal & Coke Co. v. Long, 139 Ala. 535, 36 So. 722. The fourth count as tendered by the plaintiff in this case could not possibly have been sustained by any evidence properly requisite to sustain any of the three counts in the original complaint. Accordingly, the cause of action upon which plaintiff was compelled to rely in order to recover was that tendered by the proposed fourth count. That count required evidence of a character, wholly at variance with that required to sustain any of the three counts of the original complaint. See Code Civ.Proc., sec. 1868. The defendant Tagerman was entitled to meet the count tendered by demurrers and motions—none of which he was called upon to prepare and file at the trial. Scott v. McPherson, 168 Cal. 783, 145 P. 529. This fact was recognized and conceded by the trial judge at the opening of the trial. When counsel for plaintiff withdrew the amended complaint and the court stated the case would be tried on the issues raised by the original complaint, counsel for defendant was entitled to assume that the court would not permit evidence to be received outside of the issues and, what is more, that it would not grant permission to the plaintiff to amend to conform to proof based on inadmissible evidence. He was justified in assuming that the court would not do indirectly what it could not do directly. See Code Civ.Proc., sec. 1868. The action of the court in this respect was an abuse of discretion. But quite apart from the abuse thus shown it was equally an abuse of discretion for the trial court to permit an amendment which set forth a new cause of action. It is one thing to permit a litigant to amend a cause of action defectively stated in order to properly present his case as it is made by germane allegations; it is quite another thing to ignore fundamental rules of pleading and justice.

In an endeavor to avoid a reversal respondent contends that appellant failed to object to the ruling of the court which permitted him to file the supplemental complaint. There are at least two complete answers to the contention. First, it appears that appellant objected at the opening of the trial to any amendment of the pleadings which would set forth a count such as was tendered. In the law of evidence it is a well-established rule that an objection to an offer of evidence stands thereafter, without being repeated, to like offers of evidence. Green v. Southern Pac. Co., 122 Cal. 563, 55 P. 577; 1 Wigmore on Evidence, 3rd ed., sec. 18, p. 331, n. 18; 64 C.J. 179, sec. 201, n. 41–42. Logically, it would seem to follow that amendments offered to pleadings should and must be governed by a like rule. Second, it is plainly evident that appellant did object to the order even though his objection was not as aptly phrased as it might have been.

Respondent's further contention that no miscarriage of justice is shown we think is answered by the facts and requires no further comment from us.

Additional errors assigned by appellant need not be considered or decided in view of the conclusion we have reached.

The judgment is reversed.

HANSON, Justice pro tem.

DORAN, Acting P. J., and DRAPEAU, J., concur.

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