On appeal from the Middlesex County Court of Common Pleas.
For the plaintiff-respondent, George S. Applegate, Jr. (Charles M. Morris, of counsel).
For the defendant-appellant, Francis N. Reps (Felix Rospond, of counsel).
Before Brogan, Chief Justice, and Justices Donges and Porter.
BROGAN, CHIEF JUSTICE. This is the defendant's appeal from the plaintiff's judgment in the Common Pleas Court in Middlesex county. The complaint as amended contained five counts, three of which made claim for money had and received by the defendant from the plaintiff; the fourth and fifth counts allege that the plaintiff had advanced money to the defendant at divers times for which the defendant promised in return that he would convey to the plaintiff a half interest in certain lands and a building owned by him in Middlesex county, and that the defendant fraudulently refused to perform his contract.
The defense was a general denial of the charge and a detailed averment that the several sums of money paid over to the defendant were the plaintiff's contribution to a partnership for the operation of a tavern in Middlesex county. Annexed to the answer was a copy of the alleged articles of co-partnership, dated November 14th, 1933.
At the outset of the trial, on motion by defendant, that the plaintiff elect whether he desired to proceed upon the theory of money had and received, or upon violation of the agreement pleaded in the fourth and fifth counts of the complaint, the plaintiff elected to proceed on the former. The jury found for the plaintiff in the full amount of his claim and a judgment was accordingly entered.
Prior to the close of the case, plaintiff moved to amend his claim for damages so that an additional sum of $1,000 might be included. In the testimony it was clear that this additional
sum had been advanced by the plaintiff although it had not been demanded in the amended complaint. The defendant admitted that this extra amount had been received by him but objected to its inclusion at the time request to include same was made. The court allowed the amendment against the defendant's objection.
Five grounds of appeal are written down by the appellant here. The first and second attack the allowance of the amendment just mentioned; the third asserts that it was error to refuse defendant's motion for a directed verdict on the ground that a partnership was established, and the fourth and fifth assert errors in the charge.
Now as to the amendment which permitted the inclusion of the additional $1,000, the power of the court to permit amendments is quite broad. R.S. 2:27-132. It appears that this money was advanced on July 15th, 1933, which was more than six years prior to the institution of the suit at law. No objection was offered by the defendant, however, that this part of the plaintiff's claim was barred by the statute of limitations. The defense of the statute of limitations is not available unless set up by plea and where an amendment, as here, is ordered, and if it be the fact that the statute of limitations has barred the claim, that fact should be stated as a reason for disallowing the amendment. Otherwise it is waived. But, be that as it may, the appellant takes nothing by his exception since he stated no reason whatever for his objection except the general one that he did not think the court should allow the amendment.
We proceed now to a consideration of the next point in the case -- that it was error to refuse defendant's motion for a direction of verdict. The evidence presented by the defendant supported his theory of the case that the moneys advanced by the plaintiff were contributions to a co-partnership. As to this, the plaintiff admitted that he signed articles of co-partnership but tried to avoid the effect thereof by his testimony that he did not know what he was signing; that he could not read or write and that he thought it ...