Galesburg & K. Electric Ry. Co. v. Hart

Citations

• 221 F. 7
• 136 C.C.A. 533
• 1915 U.S. App. LEXIS 1280

Syllabus

<p>1. Equity ©=>273—Amendment of Bill—New ob Different Cause of Action.</p> <p>A bill to enforce a statutory lien for work done under a contract alleged that, by reason of the circumstances and an oral contract, a prior written agreement, to which there was another party, became the contract between the parties under which the work was done, which defendant denied. The master found on the proofs that the written contract had been adopted with a single modification as to compensation. Held, that an amendment to conform to such finding and to the proofs did not state a now cause of action, but was within the fact basis of the original bill, and was properly allowed.</p> <p>[Ed. Note.—For other cases, see Equity, Cent. Dig. §§ 561-563; Dec. Dig. ©=>273.]</p> <p>2. Equity ©=>273—Amendment of Bill—What Constitutes New Cause of Action—‘ ‘Departure. ’ ’</p> <p>An amendment of plaintiff’s pleading constitutes a “departure” from tlie original cause of action only where the pleader deserts in point of fact the ground that he had first taken, or where he puts the same facts on a new ground in point of law.</p> <p>[Ed. Note.—For other cases, see Equity, Cent. Dig. §§ 561-563; Dec. Dig. ©=>273.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Departure.]</p> <p>3. Railroads ©=>159—Statutory Lien fob Construction—Taking Collateral Security.</p> <p>Defendant, a newly organized electric railway company, without money in its treasury, entered into a contract for the building of a portion of its road, bj which it agreed to sell stock at par to the amount of $75,000, the same to be paid to the contractor as the work progressed. It further agreed that such sum should be deposited in bank within 60 days, or “approved subscriptions for the said sum,” acceptable to the contractor, should be procured. A short time before the expiration of the 60 days the promoters, who controlled the corporation, signed a paper by which they agreed to take or soli stock to the