Rowland Co. v. Kell Co.

107 S.E. 602, 27 Ga. App. 107, 1921 Ga. App. LEXIS 723

• Court: Court of Appeals of Georgia
• Decided: June 6, 1921
• Docket: 12053
• Status: Published

Opinions

Hill, J.

The suit as originally brought was for damages for an alleged breach by the vendee of a contract of purchase. The seller, proceeding under section 4131 of the Civil Code (1910), asked for damages under the 'first method of procedure as prescribed by that section, for the amount of the difference between the contract.price and the market price of the goods at the time and place for delivery. The evidence disclosed that after the alleged breach by the vendee, the seller had not in fact adopted this method of determining the amount of his damages, but had pursued for this purpose the second mode of procedure provided in the statute. The defendant thereupon, at the conclusion of the plaintiff’s evidence, moved for a nonsuit, and this motion was met by an amendment to the petition, setting out allegations on the question of damages resulting from the breach of the contract, so as to conform to the evidence. This amendment was allowed by the court, over objection, and, a verdict having been returned for the plaintiff, the question whether the amendment was properly allowed is now before this court for decision. The • plaintiff in error insists that such an amendment is improper, in that it set out a new and distinct cause of action, and for the further reason that, the plaintiff having elected its remedy when the suit was filed, it was precluded from seeking the remedy set out in the amendment.

The trend of modern legislation, as well as of decisions of courts of last resort, has been to get away from .technical rules of pleading which tend to confuse rather than to simplify the issues, and to eliminate as far as possible all merely technical objections to the amendment of pleadings; and in this State the right of the plaintiff to amend his declaration is practically unlimited, so long as he-adheres to the original cause of action and introduce no new party. Civil Code (1910), §§ 5682, 5683. Nothing in the range of pleading is more liberal or broader than the rules stated in § 5682, supra: “A petition showing a plaintiff and a defendant, and setting out sufficient to indicate and specify some particular fact or transaction as a cause of action, is enough to amend by. The jurisdiction of the court may be shown, and the details and circumstances of the particular transaction may be amplified and varied by amendment. If the declaration omit to allege facts essential to raise the duty or obligation involved in the cause of action which was evidently originally intended to be declared upon, the omitted fact may be supplied by amendment.” The Supreme Court of this State has in so many elaborate opinions interpreted this section and the following one that it would seem now to be a matter of little difficulty to decide when a proposed amendment to a petition is legally permissible. A few of these decisions will be cited further on in this opinion, but it seems, to us that a proper construction and application of the sections of the code above referred to would be sufficient for determining the question.

Bearing in mind the fundamental statutory rule of amendment, which is practically unrestricted except that no new and distinct cause of action ór new and distinct parties can be allowed unless expressly provided for by law, the first question to be determined is, what is the cause of action as set out in the petition as originally filed in the present case? A brief and clear definition of “ cause of action ” is as follows: “ A cause of action may be said to consist of the right belonging to the plaintiff, and some wrongful act or omission done by the defendant by which that right has been violated.” 1 Words & Phrases (1st ed.), 1015. In other words, the cause of action consists of two elements: the right of the plaintiff, and the wrongful act of commission or omission by the defendant. In the present case the cause of action set out in the original petition was the plaintiff’s right to have the contract of purchase complied with, and the defendant’s violation of that right in refusing to carry out his contract; in other words, it was the breach by the defendant of its contract resulting in the right of the plaintiff to recover damages proximately resulting from that breach. In such cases section 4131 of the Civil Code (1910) gives to the plaintiff three remedies for the purpose of determining the amount of his damages for the breach of the contract. The original petition alleged that the remedy which had been elected by the plaintiff before suit was the first remedy allowed by this section of the code, and by compliance with that section á definite sum of damages was claimed. No contest was made as to the breach of the contract, and apparently no question was made as to the amount of the resulting damages, but when the evidence disclosed that the plaintiff had not as a matter of fact elected the first remedy prescribed by the statute, but had elected and fully complied with the second remedy prescribed by the statute, both methods of procedure resulting in the same amount of damages claimed, an amendment was offered by the plaintiff and allowed by the court, setting out the facts as shown by the evidence in reference to the plaintiff’s election of the remedy for determining the amount of the damages resulting from the breach. No effort was made to amend the allegations of the petition so far as they referred to the cause of action. The amendment was confined simply to a change of the allegations of the petition on the subject of the remedy, in order to make that part of the petition speak the truth. It has been so frequently held by the Supreme Court of this State and courts of other States and said by text-writers that an amendment' asking for the application of new or different remedies is allowable that it has now become an elementary principle of law. Probably the clearest and most exhaustive expositions of the law on this point in the decisions in this State are contained in the opinion of Chief Justice Bleckley in the Ellison ease, 87 Ga. 699 (13 S. E. 809), from which the code section quoted above was codified, and the opinion of Chief Justice Simmons in City of Columbus v. Anglin, ISO Ga. 785 (48 S. E. 318). In the latter opinion the learned jurist so clearly and fully discusses the question as to what is a new cause of action, and the discussion and definition there given have so fully met the approval of the courts, that the rule there set out, it seems to us, should be conclusive on the question,now under consideration. “ So long as a plaintiff pleads but one wrong, he does not set up more than one cause of action. . . So long as the facts added by the amendment, however different they may be from those alleged in the original petition, show substantially the same wrong in respect to the same transaction, the amendment is not objectionable as adding a new and distinct cause of action.”

In the present case the seller’s cause of action arose upon the violation of the purchaser’s contract to take and pay for the goods purchased. The remedy for this wrong, while it grew out of the violation of the contract, was not a part of the cause of action, although the sequence thereof. The amendment asks only that the measure of damages which had been elected as the method of procedure before the suit was filed by the plaintiff, and by which election the plaintiff was bound, should be applied as arising from the cause of action. It has been frequently held that a different measure of damages may be added by amendment. St. John v. Leyden, 111 Ga. 152 (36 S. E. 610). In the case here cited the petition claimed as the measure of damages the value of the property sued for. The amendment which was allowed and approved by the court changed the measure of damages to the purchase price of the property. The value of the property and the purchase price of the property may have been different sums. Here the difference in the market price and the contract price, and the difference in the price on resale was exactly the same amount,' but this is immaterial, as the measure of damages was different in both cases. In Jordan v. Downs, 118 Ga. 544 (45 S. E. 439), it was held: “Where an equitable petition is filed by-wards for the purpose of tracing trust funds which their guardian wrongfully invested in certain land, and the prayer of the petition is for the recovery of the land, an amendment striking this prayer and substituting therefor a- prayer for an accounting and for a money judgment with a special lien on the land does not set up a new and distinct cause of action.” Chief Justice Simmons, in the opinion, said: “ The cause of action was the wrongful investment of the plaintiffs’ money in the land. The amendment did not affect this, but was simply a prayer for another form of relief or recovery thereon. The first prayer was for the recovery of the land itself. That was stricken, and in its place the amendment substituted a prayer for the recovery of the money. The only change was to indicate an election to take a money verdict rather than the land. This did not affect the defendant’s defenses or constitute a new cause of action.” See also the able opinion of Justice Cobb in McCandless v. Inland Acid Co., 115 Ga. 868 (42 S. E. 449). In Walker v. Berger, 148 Ga. 326 (96 S. E. 627), it was held that “Striking the allegation that the plaintiff was damaged in a specified sum and adding a prayer for accounting did not set up a new and distinct cause of action;” and the court quoted with approval the statement of Chief Justice Simmons in the Anglin case, supra: “No new and distinct cause of action is added to a petition by an amendment which contains additional matter descriptive of the same wrong pleaded in the original petition, and which does not plead any other or different wrong.” See also, to the same effect, the opinion of Judge Lumpkin, in the early case of Maxwell v. Harrison, 8 Ga. 61 (52 Am. Dec. 385). In Harris v. Central Railroad, 78 Ga. 525 (3 S. E. 355), Chief Justice Bleckley said: “The cause of action was the homicide of the plaintiff’s husband by the negligence of the defendant. In setting out that negligence it was described in one way in the original declaration, in another by the first amendment, and in another by the second amendment. But it was all the same cause of action.” Other decisions to the same effect might be cited, but it would, be simply a “piling of Ossa upon Pelion,” and we must conclude from those cited that the principle is perfectly well settled, in this State at least, that so long as the plaintiff adheres to his cause of action as set forth in the original petition — the same matter of controversy, the same substantive transaction — he is at liberty to add as many prayers for relief, containing different measures of damages, as will best correspond with the nature of his complaint and with the proof or the merits of his case.

Applying these principles to the facts of the present ease, we think it perfectly clear that the amendment did not set out a new cause of action, but related to the same transaction, to the same controversy, the one breach of the contract by the defendant, and was confined simply to the question of remedy or the measure of damages resulting from the breach, controversy, or cause of action. As was said by counsel for the defendant in error, in their most excellent brief, “ The breach of contract by defendant was clearly set out in the petition. This was the cause of action. Plaintiff alleged it had retained the goods and sued for the difference between the market price at the time and place of delivery and the contract price. The evidence showed that it had not done this, but had sold the goods after due notice, for the account of defendant. The wrong was the same. The contract was the same. The breach was the same. As a matter of fact the damages were the same to the cent, though this is immaterial. The only thing the amendment did was to adjust the remedy prayed to the facts established by the evidence. To say that this was a new cause of action is to fail to differentiate between right and remedy — cause of action and relief!’

Another reason urged why the amendment should not have been allowed is the contention that the plaintiff in filing its suit made ■ an election of remedies, and was bound by this election. It is true that when the contract of purchase was broken by the vendee the seller had the option to elect between the three statutory remedies, and, as a matter of fact, it did elect. It elected the second remedy and fully complied with the statutory requirements in that connection. And it is true also that after the seller had made this election and had acted according to requirements of the code 'in determining the amount of the damages, this was its only remedy, and when the suit was filed it had this only remedy, but erroneously claimed a remedy to which it was not entitled. The election of its remedy, by which it was bound, was made before the filing of its suit. The remedy was applicable to the extrajudicial methods of procedure for determination of the damages resulting from the breach of the contract. A mere mistake which may have been made in not properly setting out the plaintiff's previous election of remedies and the only one it had under the statute at the time the suit was filed did not have the effect of destroying its election of remedies or of preventing it from setting out the true election which it had made previous lo the filing of its suit. In other words, an erroneous measure of damages stated in the original petition could not extinguish its right under the remedy which the statute gave it for determining the question of damages, and which it had elected. It had the statutory right to elect the remedy, and this election could not be qualified and set aside by a mere erroneous statement in the petition as to the remedy elected. In other words, an election of remedies was not made by the filing of the suit; although we do not concede that even in such case the plaintiff is always bound by the election as then indicated, and that such election of remedies extinguishes all other remedies or prevents the setting up of other remedies by way of amendment, but the election was of the extrajudicial procedure given by the statute for the determination of the measure of damages. “ There is a difference between an election of remedies and a mistake of remedy, and the law has not gone so far as to deprive parties of meritorious claims merely because of attempts to collect them, by inappropriate actions, upon which recovery could not be had.'' Sullivan v. Ross, 113 Mich. 311 (76 N. W. 309); 9 R. C. L. 957; Water, Light & Gas Co. v. City of Hutchinson, 160 Fed. 41 (90 C. C. A. 547, 19 L. R. A. (N. S.) 219).

We do not deem it necessary to discuss the question further. After a careful consideration of the authorities a majority of the court is of the opinion that the amendment did not add a new and distinct cause of action, but simply related to the measure of damages growing out of the cause of action; that this amendment was not objectionable because it asked for different relief from that sought in the original petition; that an amendment which only changes the measure of damages to conform to the facts, and is applicable to the cause of action as set out in the original petition, is always permissible; that under the evideuce the only remedy available to the plaintiff at the time of the filing of the suit was that which it had previously elected under the statute; and that the setting out of a remedy in the original petition, to which the plaintiff was not entitled, did not bind the plaintiff, and that the amendment correcting this erroneous statement was not the introduction of any new cause of action, did not deprive the defendant of any right, and its allowance by the learned trial judge was clearly in line with modern legislation, judicial decisions, and legal dicta.

Judgment affirmed.

Stephens, J., concurs. Jenkins P. J., dissents.