The Federal Reporter with Key-Number Annotations, Volume 256: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, May-July, 1919. Page: 71
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STANDARD BITULITHIC CO. V. CURRAN
just, amend any Drocess, pleading, or other proceeding, * * * by in ert-
ing an allegation material tQ the ease, or, where the amendment does not
change subst ntially the claim or defense, by conforming the pleading or other
proceedingsto the -fats proved. And in every stage of the action the court
must disregard anl error or defect, in the pleadings or other proceedings,
wluth does not affect the subtantial rights of the adverse party. * * *"
In the instant case the court did not amend on its own motion, aI-
though under the statute it would seem to be possessed of power to
do so; but it allowed the amendment to, be made after counsel for
plaintiff stated that he wished the amendment to be made. The first
cause of action -was amended, so as to state that the plaintiff is entitled
to a commission of 3 cents a square yard, on the yardage on all sorts
of pavement and kinds of pavement laid in the borough of Queens and
the borough of Richmond, in the borough of Queens 330.000 square
yards, and in the borough of Richmond 140,480 square yards. This
was objected to on the ground of surprise, as the complaint contained
nothing to show that plaintiff claimed anything outside of the \Vat-
renite and bitulithic contracts which he secured. The plaintiff was
also allowed to atpend the first cause of action as to the time when
the contract was to commence. The complaint was amended to state:
"That the contract dated on the 2d day of September, 1010, was that the
term of employment was for the term of the Warrenite and hitulithic pat-
ents. approximately 91, years, to conmnenee September, 1910, with the option
to the plaintiff and an option to the defendant to terminate such contract with-
in 6 months thereafter, If the service of the plaintiff were unsatisfactory, or
the position was unsatisfactory to the plaintiff."
The statement in the original complaint was as follows:
"That on or about the 2d day of September, 1010, in the city and county of
New York, the plaintiff and the defendant mutually entered into a contract
wherein and whereby the defendant, for a valuable consideration, appointed
the plaintiff its ggent or promoter for a period of about 9 years; said period
to commence at a date 6 months subsequent to the said 2d of September, 1910,
should the plaintiff's services prove satisfactory during the said period of said
6 months, immediately following the said 2d day of September, 1910, said
period of 9 years being coextensive with the life of certain patents. * * * "
The first of 'these amendments may now be disregarded, as the de-
fendant has not been prejudiced thereby; for the court, after the
verdict, stated that he did not think there was any evidence to support
the verdict as to the claim for pavements in Richmond and Queens,
"I will either pernlit:you to set the verdict aside, or shut out that part or
the damages which relate to Richmond and Queens."
Plaintiff's counsel consented to that, and the verdict was reduced
from $8,527 20'to $5,640 50.
 So -far as the second amendment is concerned, it was quite
within the power,,of, the court to make it, and error cannot be predi-
cated upon it. ,The amendment was in the furtherance of justice, and
worked no prejudice to the other party. In actions ex contractu, so
long as the plainAiff .dheres to the original contract on which the com-
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The Federal Reporter with Key-Number Annotations, Volume 256: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, May-July, 1919., legislative document, 1919; Saint Paul, Minnesota. (digital.library.unt.edu/ark:/67531/metadc38827/m1/85/: accessed May 29, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.