Opinion
No. 14,784.
Decided June 16, 1941. Rehearing denied July 14, 1941.
Suit on open account for merchandise sold and delivered. Judgment for plaintiff.
Affirmed.
1. PLEADING — Technicalities — Appeal and Error. In an action on account the contention of defendant that in amending the complaint plaintiff had split its cause of action, overruled, with the statement that if the contention was tenable it was so technical that it would be disregarded under rules 15 b and 61, R.C.P. Colo.
Error to the District Court of the City and County of Denver, Hon. Joseph J. Walsh, Judge.
Mr. M. W. SPAULDING, for plaintiff in error.
Mr. RICHARD TULL, Mr. DAYTON DENIOUS, for defendant in error.
THE Gates Service Station, Inc., defendant in error, to which we hereinafter refer as the company, brought suit against Jones, plaintiff in error, on an open account for merchandise sold to him, and obtained judgment for $342.45. Jones, hereinafter designated as defendant, seeks reversal on a writ of error.
The circumstances giving rise to the litigation, as indicated by the record, are, that when the original complaint was filed the account on which the indebtedness was based ran only from July 25, 1937 to August 4, 1937, and the amount of the demand was $342.55. Defendant filed a motion to make the complaint more specific, definite and certain, which motion, was denied. He then filed an answer admitting the purchase of the merchandise, but seeking certain credits based on an agreement with the company as of August 12, 1937, and claiming he was entitled to other credits amounting to $368.03 prior to the bringing of the suit. The company then asked leave, and obtained permission, to amend its complaint by incorporating therein defendant's entire account which grossed over $10,000 and which, after allowing all credits, disclosed a balance due it of $342.45 (10 cents less than the amount asked in the former prayer). Defendant contended that this constituted the splitting of a cause of action, and, instead of pleading further, elected to stand on his objection even after the court asked his counsel if he questioned the amount of the claim, to which question there was a response in the negative, and after a specific date had been fixed for him to cross-examine representatives of the company on its account. All of the assignments of error go to the single proposition of the splitting of the cause of action, and allowing the amendment.
We do not think there was any splitting of a cause of action here, and if there was, the objection is so technical that we would disregard it under section 84 of the Code (Rules 15 b and 61, R.C.P. Colo.). See, also, Baldwin Coal Co. v. Davis, 15 Colo. App. 371, 62 Pac. 1041.
Judgment affirmed.
MR. CHIEF JUSTICE FRANCIS E. BOUCK, MR. JUSTICE OTTO BOCK and MR. JUSTICE HILLIARD concur.