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Miller v. Thompson

October 1916


Appeal from First Judicial District Court, Ormsby County; Frank P. Langan, Judge.

C. O. Whittemore and Platt & Sanford, for Appellant.

H. C. Price, for Respondent.

By the Court, McCarran, J.:

This is an action on contract. It appears from the record that the plaintiff had located mining claims on the open public domain in Fish Lake Valley, in Esmeralda County, Nevada, the land embraced within the claims amounting to some 65,000 acres.

The contract entered into by the parties and on which this action is founded was in part as follow:

“That for and in consideration of the sum of one hundred dollars ($100) in hand paid by the second party to said first party, the receipt whereof is hereby acknowledged, and other valuable considerations passing from second party to first party, and the further payment to first party by second party of the sum of one hundred ($100) per month, on or before the first day of each and every month, beginning May first, 1912, during a period of time hereinafter fixed, said money to be placed to the credit of first party in the First National Bank of Los Angeles, California; and in further consideration of the terms and conditions hereinafter expressed, said first party hereby agrees to relinquish, release and abandon certain mining claims and tracts of government land situated in Fish Lake Valley, Esmeralda County, State of Nevada, approximating sixty-five thousand (65,000) acres, the abandonment of said lands having been placed in the hands of second party at the time of the signing of this agreement.

“As a further consideration for this agreement, said second party hereby agrees to make application under the law known as the ‘Carey Act,' in the State of Nevada, for withdrawal of all of said lands so relinquished and abandoned by first party and her associates, and also to make application for withdrawal under said Carey Act of certain other tracts of land in said Fish Lake Valley, Esmeralda County, State of Nevada; the whole of said lands so applied for to be approximately one hundred thousand (100,000) acres more or less; and in the event such application is approved by the proper state and

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United States government officials, said second party shall appropriate and develop such of said lands as he deems practical and capable of development, according to the provisions of said Carey Act; the same to be sold and disposed of to the best ability of the parties hereto; and said first party hereby agrees to use her best endeavors to assist second party in the sale of said lands and the promotion of the enterprise herein provided for, she to receive no commission on sales made by her, it being hereby agreed that second party shall be allowed such agents' commissions as he deems necessary and advisable to be paid in making sales of said lands, no part of such commissions to be paid by first party.

“It is expressly provided that the second party shall have the full and complete control and management of said business and the enterprise provided for herein and the right to make such disposition of any and all of said lands as he deems best, provided, however, that he shall pay to first party one-eighth of any and all money received from sales of land procured under this agreement, or its production, and that a monthly accounting shall be rendered by second party to first party of all sales made, and the money coming to first party under said accounting shall be placed monthly to her credit in the First National Bank of Los Angeles, California.

“It is further agreed that the payment of one hundred dollars ($100) per month by second party to first party, hereinbefore provided for, shall cease at the time of the sale of any of the aforesaid lands amounting to one hundred sixty acres (160). * * *

“It is further agreed that all of the terms and conditions herein expressed shall be binding upon both of the parties hereto and upon their and each of their heirs, executors, administrators and assigns.”

1. Two questions are presented in the case at bar, one having to do with the right of the plaintiff in the court below to amend the prayer of her complaint at the conclusion of the presentation of her case and before the

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judgment was entered. The other, which we deem the more serious, is that the evidence is insufficient to warrant the judgment and decree of the trial court.

In so far as the question of the right of the court to admit of the amendment to the prayer of the complaint is concerned, the action of the court in this respect comes under the rule, which we believe well supported by authority, that a pleading may be amended so long as the facts alleged as the basis of the recovery remain the same, so that a new cause of action is not interposed; and under this rule a pleading may be amended by amending the prayer so as to enlarge or modify the extent of the relief sought. (Johnson v. White Mountain Creamery Assn., 68 N. H. 437, 36 Atl. 13, 73 Am. St. Rep. 610; Rettig v. Newman, 99 Ind. 424; Western Union Telegraph Co. v. Brown, 62 Tex. 536; Hogueland v. Arts, 113 Iowa, 634, 85 N. W. 818.)

The section of our code applicable to the matter (Rev. Laws, 5081) provides:

“Where the variance is not material, as provided in the next preceding section, the court may direct the fact to be found according to the evidence, or it may order an immediate amendment, without costs.”

In the case of Buckley v. Buckley, 12 Nev. 423, this court held in substance that, when the facts alleged in a supplemental pleading occurred after the original pleadings were filed and were consistent with and in aid of the original pleadings and did not bring into the case any new cause of action or any controversy that was not in fact included in the issue originally made, supplemental pleadings should be allowed if asked for, so as to protect the rights of the respective parties.

The basis of the controversy in the matter at bar was the contract, which was of a continuing nature. The amount due on the contract at the time of the filing of the complaint was, by reason of the very nature of the contract itself, less than that which would have accumulated by reason thereof at the time of the rendition of judgment. It was not a new cause of action nor a cause

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of action based upon a new or distinct ground. It was the same cause of action based upon the same instrument.

In the case of Maionchi v. Nicholini, 1 Cal. App. 690, 82 Pac. 1052, the Supreme Court of California, under code provision quite similar to ours, held that the court might direct a fact to be found according to the evidence, and may order an amendment to the original pleading sufficient to cure an immediate variance, and which would make the pleading conform to the proof; further, that this might be done without serving a copy upon the adverse party or his attorney, providing, however, that the adverse party was not actually misled by such amendment to his prejudice.

This same principle was discussed in the case of Ennis Brown Co. v. Hurst, 1 Cal. App. 752, in the same volume of the Pacific Reporter at page 1059, wherein the court held that it was proper for the trial court to permit of an amendment to the complaint after the evidence had been closed and the cause had been submitted and taken under advisement and before decision; and to the same effect is the case of Lee v. Murphy, 119 Cal. 364, 51 Pac. 549, 955.

In the case of Ramboz v. Stansbury, 13 Cal. App. 649, 110 Pac. 472, it was held that, when in the trial of a cause evidence was offered as to subject-matter of an amendment subsequently made to the complaint, the court did not abuse its discretion in permitting such amendment where such would conform to the proof.

In the case of French v. McCarthy, 125 Cal. 508, 58 Pac. 154, the Supreme Court of California, having under consideration a matter of contract, held that, where the defendant appears and answers in an action on a contract, the terms of which are set forth in the complaint, and there is a want of conformity between the prayer of the complaint and the facts set forth, the court is authorized to permit an amendment at the trial by inserting a larger sum in the prayer.

The case of French v. McCarthy, supra, presented a problem affecting an amendment to the prayer of a complaint in an action where a contract continuing in its

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nature was involved, and where, after the action had been commenced, additional payments were made on the contract so as to involve a sum in excess of that due and owing on the contract at the time of the commencement of the action.

In the case of Finnegan v. Ulmer, 31 Nev. 523, 104 Pac. 17, this court, in quoting from its former decision in the case of McCausland v. Ralston, 12 Nev. 202, 28 Am. Rep. 781, affirmed a rule which we think applicable to the case at bar, wherein it said:

“Courts in allowing pleadings to be amended are necessarily clothed with discretionary powers which cannot, owing to the varying circumstances of each particular case, be governed by any general rule. The vital question is whether the court has grossly abused its discretion in this respect, or whether, by the allowance of the amendments, manifest injustice has been done to appellant.”

The amendment allowed by the court, and which was to the prayer of the complaint, introduced no new allegations, made no additional parties, did not complicate the suit, nor increase the expense of litigation, nor did it make new issues of fact or incumber the record. Early ...

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