R. E. Tharp, Inc. v. Miller Hay Co.

Plaintiff, a licensed radial highway common carrier, brought this action to recover $11,935.22 from defendants on an open book account. 1 During the trial plaintiff attempted to prove that the money which it sought to recover was for undercharges resulting from the transportation of defendants’ hay. Defendants, however, objected to plaintiff’s evidence on the ground that it was at variance with the pleadings and the objection was sustained. Plaintiff then moved the court for leave to amend its complaint to state a cause of action for an account stated in order to conform to proof. Plaintiff’s motion was granted by the court and the complaint was deemed amended accordingly. At the conclusion of the trial the trial judge (Judge Coffee) resigned before awarding judgment to either party. By stipulation the cause was submitted to another judge (Judge Hammerberg) for decision on the reporter’s transcript. Judgment was granted in favor of defendants and plaintiff moved for a new trial. It asserted that irregularities in the proceedings prevented plaintiff from having a fair trial; plaintiff alleged that Judge Coffee erred when he rejected plaintiff’s proffered evidence relating to the…