464 PURSE BROTHERS V. WATKINS. [171 PURSE BROTHERS • V. WATKINS. • Opinion delivered June 14,1926. 1. APPEAL AND ER ROR— CONCLUSIVENESS , OF TERDICT.—A verdict upon conflicting testimony is conclusive. 2. APPEARANCE--FILING AN SWER.—Though defendants were not •personally_ served with process, they Will t■e held to have entered their appearance fir all purposes by voluntarily , filing an answer to the complaint. 3.. PROCESS—NECESSITY AFTER AMENDMENT OF PLEADING.—It was not error t6 permit a complaint to be amended after notice to
ARK.] PURSE BROTHERS V. WATKINS. 465, allege greater damages without • new service of - process, where defendants, though not personallY served, .entered 'their. appearance bY filing an answer. TRIAL-REFUSAL OF INSTRUCTION ALREADY CON TERED.-It was not error to refuse an instruction covered by -one giVen by the court. Appeal from Howard Circuit' Court'; /3: E. Isbell; Judge ; affirmed. Pin/nix c g* Pinnix and TV. C. Rodgers, for appellant: J. G. Sain and Geo. R. Steel, for appellee: SMITH, J. This action was brought-by appellee Wat-kins against appellants, Pnrse Eros., who are prodnce dealers, with their place of business in Detroit; Michigan, for damages arising from an alleged breach of contract. It was alleged in the complaintlhat on Rine 18, 1923, appellee entered into a written contract'with appellants• for the sale of-eight cars of peaches of Me following specifications : "No. 1 ring-pack corrugated-top, $2.60. No. 2 'ring-faced corrugated' top, $1.60. No. 1 peaches' are to be 13 % inches and above. No. 2 'slightly smaller. Peaches to be paid for when loaded 'and bill of lading signed." Appellee shipped 'to appellants,' pursuant to said contract, six cars of peaches of-the kind an&character specified . in said contract, and; upon arrival' of' same, in Detroit, they were inspected 'and rejected, whereby appel-lee was damaged in the sum of $400,- for which amount he prayed judgment. Appellants filed an answer; in which they allegeCI that the peaches did not come up to the.requirements of the contract, in that many of the peaches shitped as No. 1. contained twenty to thirty per -cent: of No. 2; and that the peaches were not of the grade, pack or quality called fir by the contract. Some tinie after appellants had filed tileir 'answer, appellee amended his complaint- to allege that the damages sustained amounted to $806.70. The allegations of the complaint were not changed except to allege greater damages had been sustained than the original complaint alleged..
466 PURSE BROTHERS V. WATKINS. [171 Appellants filed a motion to strike the amended complaint . from the , files, "for the reason that the defendants have not been served 'With process within the jurisdiction of this court:" Appellants had entered their appearance voluntarily to a suit wherein only $400 , damage§ were claimed, and it was objected that, inasmuch .as there had been no . personal service, the court should not permit the cause , of action to tie changed by allowing appellee to claim . an increased arnount as damages. This motion was overruled, . and exceptions were saved., Thereafter, reserving their exceptions, appellants filed ananswer denying any liability, as had been done in their original a • ns , W er. . , It was shown. that the terms, "No 1 ring-pack corrugated top" and "No 2 ring-faced corrugated top,': were trade terms, having a well-known and certain Mean-• big to those engaged in buying and shipping peaches, and the testimony was conflicting as to whether the peaChes came ut! to the . staridard which those trade terms implied,. , The testimony on the part of the appellee waS to the effect that the peaches graded up tO the specifications required by the contract, that , the peaches were in fact of a better quality than the contract required; whereas the . testimony on the part of appellants is to the, contrary. the deposition of Ida M. Burns was taken, and she testified that she was a clerk in the Burean of Agricultural Economics, stationed at Detroit, and that she had in.her custody inspection certificates, made by riaembers - 'of , her , department, on produce shipped to Detroit, arid She produced_inspectiori certificates covering five cars of the peaches involved in this litigation, acCorcling ,which certificates many of the peaches were hair-pricked and scabby and to an • extent that the peaches did , not grade . np . to , the specifications of the • contract. Other testimony to , the same effect was offered, but, as we have Said, the testimony was conflictirig on this question, and the testimony is legally sufficient to support either contention concerning the quality arid grade of the peaches.
ARK.] PURSE BROTHERS V. WATKINS. 467 Unlike the case of Federal Grain Co. v. Hayes Grain &Commission Co.; 161 Ark. 51, and the same case reported in- 169 Ark. 1072, there was no provision whereby any 'arbitration of the question was previded for, and the verdict of the jury must therefore be treated as conclusive of' this question of fact. • ' It is also insisted that the court erred dn giving and in -refusing to give certain instructions. - We do nOt think any error was coraMitted in per-:Mating appellee to amend his complaint % to -allege . a ' . greater damage than that claimed in the originaF com-'plaint. It :is true there was - no personal servide i, but appellants , voluntarily - filed an -answer AO the -original complaint, 'and this action entered their appearanee as completely as if they- had been personally served with 'ProCess. 'In the case of S. R. Morgan & -Co: v. Pace, 145 Ark. 273 . the plaintiff' sued the defendant to recover , the -sum ''Of $500 alleged to be due for , legal services, 'and a judg-'• went Was rendered hydefault for that amount'. • This judg-'inent Was later Set Aside, and au answer was filed in which 'the defendant denied- liability! Thereafter the plaintiff filed an amended Complaint in which the value of ,the - service's was alleged to: ; be $1,000., - No sun:Lb:ions :was iSsned on the amended. complaint or nOtice given ;to the ' defendant of the claim' 'for the additional aniount, and no anSwer was filed to the•amended complaint: The cause '' Was set dOwn' for trial; and defendant failed. to appear, whereupon d trial was' had•and a verdict was returned in favor of the Plaintiff for! $750. UPon the appeal from tliejudgment pronounced upon the verdict, it was insisted • 'by the defendant below,' appellant here; that the increase the amount claimed' in the , amended .complaint stated a ' -new canse of action, Which'-necessitated the issuance' and 'serviee of an additional surumons. , The : original action for $500 covered the same -transaction; and was , alleged in identical languagean the . amended Complaint: We-said that, under the statute; a Plaintiff maY file : an athended 'comPlaint before answer filed without permission of the
, 468 PURSE BROTHERS V. WATBINS. [171 court, but that, after answer had been filed, the complaint • could only be amended by permission of the court, and then upon such terms as might be imposed by the court; and:that ' fto allow an amendment, after the issues' have been joined, - increasing the amount of a claim, and to render a judgment for the additional amount claimed, without notice to a defendant; would be an abuse of sound discretion," for the reason that the defendant had the right' to make default in reliance upon the case proceeding to ,a hearing upon the issues . joined. The judgment appealed 'from was reduced to 4500,- the amount. claimed in the original complaint,- and affirmed for that sum. :It appears from the . language quoted- that new service of process was not required. ,The aniendment to.the . complaint enlarging. t-he sum-claimed was- not treated as a new cause of action, and it was required only that, permission to amend be obtained from- the court and that notice of the amendment be given the defendant, so that he • might not, in case• he- -elected not, to .def end the action, rely upon the:assumption that no greater, judgment would be -rendered than had been prayed for in, the complaint which the process - served- upon him required him -to -answer. -Here there was- permission from the court-and notice to the defendant. . A motion was .made 'to • strike the amended complaint,- and -this motion -was overruled, _ so . that• appellant _had ample opportunity to . resist the increased claim-as. well as the original demand. In volume 1 Encyclopedia of- Pleading • and Practice, § 10 of the -chapter on Amendnients,. at . page . 586, it is said : `.` Amendments of the ad . da/mnvirn are never deemed to constitute . a new cause -of action. Hence that frequent ground of objection will- not hold -at. any stage of- the case against amendments increasing, or . reducing the amount demanded." -See also Phillips': Code Pleading, § 315, and note to the-case of Commonwealth y . A. B. • Batter d Co., 42 L. R.. A. (N.. SO 484. - :Appellants asked instructions to the- effect. that the _contract was an entire one, that appellants were not ., required: ta accept any of the cars unless all of the.cars
ARK.] . 469 came up to the specifications, and that appellants were not required to accept the peaches unless they were of -a kind which could . be handled• by them under the grade, quality and size called for by the contract. No error was committed in refusing these instructions, for the reason that . the instructions given , submitted the • question of fact .whether the peaches conformed to- the contract, and required a finding that .appellee shipped . to appellants," in pursuance to . said contract, six cars of .peaChes of the kind, , grade and specifications provided in said contract," before finding for the plaintiff. There was no question about the deterioration of the peaches in shipment, . and the grade of the peaches was, when received, the same as when they were . shipped. The instructions required the jury to find, before returning a verdict for the plaintiff, that the: peaches were of the kind, grade and quality specified in the contract, and, if they were, plaintiff was entitled to a verdict for any dam-• ages sustained by reason of appellants' refusal to receive • them. When appellants refused to receive the peaches, appellee ordered the peaches sold by ‘ another dealer, and . no -complaint . is made that the verdict. returned . by the jury, which was for the sum of $793.80, is excessive. Finding no error, the judgment is affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.