Meinshausen v. A. Gettelman Brewing Co.

The cause of action alleged in the original complaint was based upon an express written contract, which was therein alleged to have been fully performed on the part of the American Copper, Brass & Iron Works on or before April 1, 1898. The action was not commenced until nearly six years after such alleged performance, and the amendment was not made until nearly three years after the action was commenced, or nearly nine years after the alleged cause of action upon the written contract had so accrued. The complaint, as amended, alleges the making of the written contract and annexes a copy of it, but fails to allege performance, and seeks to recover on quantum meruit without performance or any claim of performance of the written contract. Was such amendment properly allowed? Under our statutes the power of the trial court to allow amendments to pleadings and proceedings is very broad, and this court has frequently sanctioned its liberal exercise. See secs. 2669, 2670, 2829, 2831, Stats. (1898). As claimed by counsel for the plaintiff, it has been held that a complaint for services on quantum meruit could be changed by amendment on the trial to a cause of action on express contract. Pellage v. Pellage, 32 Wis. 136. So it has been held that an action on express contract could be changed by amendment to an action for money had and received. N. W. U. P. Co. v. Shaw, 37 Wis. 655 ; Wells v. Am. Exp. Co. 49 Wis. 224, 5 N. W. 333; McHenry v. Grant, 84 Wis. 311, 54 N. W. 626. See. also. Gales v. Paul, 117 Wis. 170, 94 N. W. 55. *101But tbis court also beld at au early clay that “where an action bas been brought for damages for the wrongful erection and maintenance of a milldam, and also for an injunction against the further maintenance of such dam, the plaintiff should not be allowed at the trial to amend his complaint, so as to make it conform to the provisions of the milldam law, and proceed for the recovery of compensation under that law.” Newton v. Allis. 12 Wis. 378. Soon after it was held that “an amendment should not be allowed, either at or before trial, which entirely changes the cause of action sued upon.” Stevens v. Brooks, 23 Wis. 196. So in a recent case, where an action was brought for injury to land caused by fires set by a locomotive of the defendant, it was held to be “an abuse of discretion to allow the complaint to be amended by inserting a claim for injury by the same fire to other land a mile distant, where the application was not made until nearly three years after the action was commenced and nearly nine years after the fire, and said claim, as an independent cause of action, was long since barred by the statute of limitations.” O’Connor v. C. & N. W. R. Co. 92 Wis. 612, 66 N. W. 795. Eor other cases see Carmichael v. Argard, 52 Wis. 607, 609, 9 N. W. 470; Post v. Campbell, 110 Wis. 378, 382, 85 N. W. 1032; Charmley v. Charmley, 125 Wis. 297, 302, 103 N. W. 1106. As indicated in the foregoing statement, the defendant not only objected to such amendment being made, but immediately upon its being made answered the same by alleging, in effect, that the cause of action therein set forth “accrued, if at all, more than six years prior to the commencement of this action, and is barred by” the third subdivision of sec. 4222, Stats. (1898). The amendment in question would undoubtedly have been permissible had it been made before the statutes of limitation had run upon the new. cause of action. When an amendment changing the cause of action is permissible and when not is pointed out in several of the cases cited.

*102The important question presented, is whether the cause of action on quantum meruit, first introduced by way of amending the complaint upon the trial, related back to the commencement of the action upon express contract.. The law deducible from the adjudications on the subject is aptly summarized in a late federal case, to the effect that an amendment “which sets up no new cause of action or claim, and makes no new demand, but simply varies or expands the allegations in support of the cause of action already propounded, relates back to the commencement of the action, and the running of the statute against the claim so pleaded is arrested at that point. But an amendment which introduces a new or different cause of action, and makes a new or different demand, does not relate back to the beginning of the action, so as to- stop the running of the statute, but is the equivalent of a fresh suit upon a new cause of action, and the statute continues to run until the amendment is filed; and this rule applies although the two causes of action arise out of the same transaction, and, by the practice of the state, a plaintiff is only required in his pleading to state the facts which constitute his cause of action.” Whalen v. Gordon, 95 Fed. 305, 308, 309, 313. It is there said:

“There are three established tests that are always useful to determine the identity of two causes of action: Will the same evidence support both? Will the same measure of damages govern both ? And will a judgment against one bar the other? Causes of action may differ, concerning which some of these questions may be answered in the affirmative. But it can be safely said that no two causes of action can be identical concerning which all these questions must be answered in the negative.”

Among the numerous adjudications cited in support of the propositions quoted are Newton v. Allis, 12 Wis. 278, and two cases from the supreme court of the United States, quite analogous in principle to the case at bar. Tex. & Pac. R. Co. v. Cox, 145 U. S. 593, 603, 12 Sup. Ct. 905; Union Pac. R. *103Co. v. Wyler, 158 U. S. 285, 15 Sup. Ct. 877. Tbis last case was an action by an employee of a railroad company against tbe company for personal injury, based upon tbe general law of master and servant. It was sought by amendment to change tbe nature of tbe claim and base it upon a statute of Nansas, and such amendment was held to be a departure in pleading, setting up a new cause of action, which could not be regarded as commenced until tbe amendment was incorporated into tbe pleading; and hence that tbe action was barred by tbe statute of limitation. So in tbe case at bar we must bold that tbe cause of action on quantum meruit was separate and independent from the cause of action on express contract, and that no action was commenced on qwm-tum meruit until tbe filing of tbe amended complaint, at which time that cause of action was barred by tbe statute of limitation. It follows from what has been said that tbe complaint was improperly amended, and tbe motions for a non-suit and for tbe direction of a verdict in favor of tbe defendant were improperly denied.

By the Court. — Tbe judgment of tbe circuit court is reversed, and tbe cause is remanded with direction to dismiss tbe action.