
    J. SCHUYLER CROSBY, Plaintiff and Respondent, v. G. BURGHALL WATTS, Defendant and Appellant.
    EQUITY JURISDICTION AND PRACTICE.
    ACTION FOB AN ACCOUNTING.
    AMENDMENT OF COMPLAINT ON THE TBIAL TO CONFOBH THE PLEADING TO THE FACTS PROVED, UNDER CODE, § 173.
    Where parties have had joint transactions together which are unsettled, either of them, who claims that he has rights to be declared or enforced, that arise from said transactions, may bring an action for an account, in which an account may be legally stated and taken that shall be binding upon both parties, and after the proofs are taken, if it appears that the proofs do not substantially change the claim, or the substance thereof, as set up in the complaint, the complaint may be amended under § 173 of the Code, so as to conform the pleading to the facts proved.
    Such an amendment does not fall within the restriction of that section, which provides that the amendment shall not change substantially the claim.
    It would impair the efficacy of equity jurisdiction, in these cases, if it was held as a rule that unless the suitor accurately set forth the facts constituting his claim, he should be dismissed from the court, without judgment, although the facts proved fully established his claim thereto.
    
      Before Curtis and Sanford, JJ.
    
      Decided, May 1, 1876.
    The theory of this class of remedies is that the court will marshal, and, state and pass judgment upon the transactions and accounts, as they shall be disclosed and established at the hearing; and the origin of the remedy was based upon the necessity of those cases where, by ignorance, fraud, or other causes, men were prevented from properly or correctly stating their accounts, so as to protect their rights in the premises; and in such cases a court of equity intervenes, and takes, and states the same when its aid is sought.
    No stringent rule can be applied to the complaint or statement of this class of claims; as such a rule would be liable to prevent a just and equitable accounting, and a discovery is a part of the theory of the action.
    In the case at bar, the amendment was especially applicable to the pleadings in this class of cases, for the reason that oftentimes parties do not know the facts in detail, in regard to their respective claims, until the proofs are taken and the account between them taken and stated, and thus by an amendment of the pleadings, the record is relieved of embarrassment.
    The court also held, that in the case at bar, if there had been no amendment of the complaint, the plaintiff would have been entitled to the judgment, in conformity to the accounting taken and stated by the court.
    When a party acting in a fiduciary capacity, has by false statements and acts caused his principal to incorrectly state in his complaint, in an action for an accounting between them, the facls relating to, and the character and extent of his claim and of the transactions and accounts, respecting which he calls the agent to account, the latter cannot deprive the former of his remedy, by disclosing upon the trial his own wrongful acts, and seeking a technical advantage thereby, to defeat the action, because the real facts thus disclosed, do not conform to those stated in the complaint.
    Courts of equity do not lend themselves to the furtherance of such schemes or views.
    Appeal from a judgment rendered at special term,
    
      The action is brought for an accounting between the plaintiff and the defendant, in respect to a transaction had, in regard to a purchase of two hundred shares of Panama Railroad stock. The plaintiff claimed that there was an agreement that the defendant should purchase the shares for their joint account, and that the profits and losses should be equally divided between them.
    The defendant denied that there was any such agreement, but alleged that he purchased and sold for the sole risk of the plaintiff, one hundred shares of Panama Railroad stock; and that an account was stated between them of such purchase, and sale, showing a balance due to the defendant, which the plaintiff promised to pay, and on account of which he made various payments, leaving a balance still due, for which he asked judgment against the plaintiff. The plaintiff denied such purchase and sale for his individual account.
    The judge found that the agreement between the parties was that the defendant should purchase two hundred shares of this stock, and hold and carry the same on and for the joint account of the plaintiff and the defendant. The judge further found that no purchase had been made of the two hundred shares of the stock, by the defendant, in pursuance of such agreement, nor had he paid out any money under the agreement, and that upon the defendant’s representations that he had made such purchase, and had paid and advanced money for such shares of stock, and that a loss resulted from the sale thereof, the plaintiff paid to the defendant sundry sums of money, amounting in all, with interest, to two thousand three hundred and ninety-two dollars and fifty cents, for which he was entitled to judgment against the defendant.
    After the proofs had been taken at the trial, and before the summing up of the counsel, the plaintiff moved to amend the complaint so as to allege “ that no purchase whatever had been made by the defendant of any stock, on the ground that the evidence produced showed that to be the fact.”
    This motion was granted, and the defendant excepted.
    The defendant appeals from the judgment.
    
      George V. N. Baldwin, attorney, and F. F. Marbury, of counsel for appellant.
    
      Albert Stickney, for respondent.
   By the Court.—Curtis, J.

Two questions are presented on this appeal, one of fact as to whether the defendant made any purchase whatever of the stock in question ; the other, whether the court erred in allowing the amendment of the complaint.

An examination of the evidence shows, that both parties transacted business loosely. Their relations were intimate, and their mutual business matters were conducted without much reference to making and preserving full and regular entries and memoranda of what was done. Neither, individually, seemed conversant with details.

The testimony of the defendant, that the agreement was that he should buy one hundred shares of Panama Railroad stock for the sole account and risk of the plaintiff, and that he did so, is met by the denial of the plaintiff, whose evidence is directly in conflict as to the making of any such agreement with the plaintiff.

Where the recollections of parties are so at variance, some light and reliable proof may be often gained by referring to entries in books made at the time of the occurrences, and also to the written statements rendered by one party to the other, when the subject matter is fresh in their memories.

Upon examining the books of the defendant, and the statements rendered by him to the plaintiff, the plantiff’s testimony that the purchase was to be made on joint account and the profits and losses to be equally divided between them is strongly corroborated. This is also confirmed, by reference to preceding transactions of purchases of stocks, where the dealings in stocks between the parties were on this footing, and the accounts so kept and rendered.

The entries in the books of the defendant in reference to this stock, at the period in question, fail to strengthen his testimony in regard to having purchased this one hundred shares for the plaintiff. The defendant does not appear to have had much acquaintance with his books, or the way in which his accounts were kept and statements rendered.

The explanation of the defendant’s book-keeper, that this difficulty with the accounts is the result of a mistake made by him, may be true, but it is not very satisfactory. The judge before whom the case was tried, who had the books, and the statements rendered, and the witnesses before him, and who had the best opportunity of finding out and determining what were the facts in the case, has come to a conclusion adverse to what is claimed by the defendant.

Though the testimony is conflicting, yet the findings of the judge at the trial are so sustained by the proofs, that the court on appeal cannot consistently with the well settled rules governing under such circumstances, hold they are erroneous.

It remains to be considered what force is to be given to the defendant’s exception to the amendment of the complaint ordered by the judge at the trial. The 173d section of the Code, gives power to the court to amend by conforming the pleading to the facts proved, subject to the restriction that the amendment does not change substantially the claim or defense. It is urged on the part of the defendant that the judgment in this action is in direct hostility to the theory of the suit, and cannot be maintained.

The theory of the suit is that the plaintiff and defendant have had transactions together, in respect to which the plaintiff is entitled to an accounting and asks judgment for an accounting. Under such circumstances, when unsettled transactions have occurred between parties, it is the right of either one, whether a creditor or a debtor, who deems he has rights to be declared or enforced, to bring an action for an accounting, so that an account may be legally stated and taken that shall be binding upon the parties, and by which present and future difficulties may be avoided.

In the present case, the court, instead of referring it to a referee to take and state the accounts between the parties, proceeded with the hearing of the cause, and the taking and stating of the accounts between them. The accounts, as stated and found by the court, charged the defendant with the sums which had been paid to him by the plaintiff, upon his representations as to the purchase of the stock, and disallowed all the other items which either party presented or claimed against the other at the trial.

The amendment of the complaint, by conforming it to the facts found by the court to be proved, was not such an amendment as comes within the restriction of the Code. It did not change substantially the claim, because the substance of the claim was simply that unsettled transactions existed between the parties, and the plaintiff prayed an accounting. It would gravely prejudice the efficacy of this provision of equity jurisprudence in the administration of justice, if it was held to be a necessary preliminary that the suitor should, unless he accurately set forth his claim, be dismissed from court. The theory of the remedy is that the court when appealed to, will marshal and state and pass upon the accounts between the parties, as they shall be disclosed and established at the hearing, whether before the referee or the court. The origin of the remedy is due to necessity, that when ignorance and fraud or other causes prevent men from properly stating and taking their accounts so as to protect their just rights, a court of equity will intervene to take and state them when its aid is asked, bio stringent mile can be applied as to the statement of this species of claim, as it would be liable to prevent an accounting, because a discovery is a part of the theory of the action.

The amendment granted is especially applicable to the pleadings in this class of cases, for the reason that it is oftentimes only when the account has been taken and stated, that parties can know what their respective claims are, and then by amending the pleadings, conformably, the record is relieved of embarrassment. If in the case at bar, there had been no amendment of the complaint, the plaintiff would have been entitled to his judgment in conformity to the accounting as taken and stated.

The defendant made no application to amend his answer. He appears to have acquiesced in letting the answer stand, it being provided in the order, making the amendment, that it was made without prejudice tu any proceedings already had. It would be inconsistent with well settled principles, that where a defendant acting in a fiduciary capacity, has by untrue statements led his principal to incorrectly describe in his complaint the nature or extent of the. transactions, respecting which he calls the agent to account, that the latter can deprive him of his remedy by disclosing on the trial, his own wrongful acts, and taking a technical advantage of them to defeat justice. Courts do not lend themselves to the furtherance of such views. For these reasons it would seem that the exception of the defendant to the granting of the amendment is not well taken.

The judgment should he affirmed with costs.

Sanford, J., concurred.  