Opinion
March 24, 1916.
March 24, 1916.
Present: RUGG, C.J., LORING, BRALEY, De COURCY, PIERCE, JJ.
A judge presiding at a trial of an action of contract upon an account annexed for work, labor and materials has power during the trial to allow an amendment adding as a party plaintiff one who, according to the testimony of the original plaintiff on cross-examination, was a partner at the time of the incurring of the debt for the recovery of which the action is brought; and it is not necessary that the trial should be stopped or that the plaintiff should become nonsuit.
CONTRACT upon an account annexed for work and labor performed and materials furnished previous to November 5, 1912. Writ dated March 17, 1914.
The action was tried before White, J. The plaintiff John B. Richardson testified in cross-examination that at the dates of the items in the account annexed his brother Noah was his partner. Subject to an exception by the defendant the brother was added as a party plaintiff. The defendant also moved that the plaintiff be nonsuited, and the motion was denied. The defendant also saved a general exception to "all testimony going in under the amendment."
There was a verdict for the plaintiffs in the sum of $107.14; and the defendant alleged exceptions.
C.S. Warshauer, for the defendant.
H.R. Scott, for the plaintiffs.
This record affords no foundation for the contention that the firm, with whom the defendant made the contract, was not composed of the persons named as plaintiffs in the writ and declaration as amended.
The court had authority to allow the amendment adding as one of the plaintiffs the person who, according to the testimony, was a partner at the time of the contract upon which the action was brought.
Exceptions overruled.