McConnell v. Leighton

74 Me. 415, 1883 Me. LEXIS 34

Opinion

Appleton, C. J.

This is an action of trover for the conversion of certain logs belonging to the plaintiff.

The plaintiff moved to amend by addi,ng counts in case for the loss of the same logs through the wrongful action and inaction of the defendant. The propriety of the proposed amendments was submitted to the court as a question of law.

Trover is an action on the case. It may be joined with case. When the action is originally trover, new counts in case may be added by way of amendment. Googins v. Gilmore, 47 Maine, 9; Moulton v. Witherell, 52 Maine, 237.

It is objected that the new counts describe differently the grounds of the defendant’s liability and that they would be sustained by proof varying from what would be required in trover. But all amendments vary from the declaration as originally drawn else they would be unnecessary. ^

Here the loss on all the counts is the same. A different description of the manner of its occurrence may necessitate a difference of proof. But in all the counts the defendant is alleged to be the cause of the loss. The statements of the liability of a defendant may vary when the wrong done aixd the loss occurring are the same. The amendments are clearly within the cases cited. Swan v. Nesmith, 7 Pick. 220; Ball v. Claflin, 5 Pick. 303; Smith v. Palmer, 6 Cush. 517; Rand v. Webber, 64 Maine, 191.

The amendments are to be allowed on terms to be fixed at Nisi Prius.

Walton, Danforti-i, Virgin, Peters and Symonds, JJ., concurred.