Bowers v. Good

• Citation: 100 P. 848,52 Wash. 384
• Parties: BOWERS et ux. v. GOOD et ux.
• Decision Date: 01 April 1909
• Court: United States State Supreme Court of Washington

100 P. 848

52 Wash. 384

BOWERS et ux. v. GOOD et ux.

Supreme Court of Washington

April 1, 1909

Appeal from Superior Court, King County; Mitchell Gilliam, Judge.

Action by Thomas Bowers and wife against Charles W. Good and wife. From a judgment for defendants, plaintiffs appeal. Affirmed.

Southard, Brown & Murphy, for appellants.

T. N Tallentire and Farrell, Kane & Stratton, for respondents.

FULLERTON J.

In 1905 the appellant Elizabeth Bowers and the respondents, acting through their agent, one Julia A. Underwood, entered into an oral contract, whereby the appellant agreed to buy, and the respondents agreed to sell, a certain tract of land situated in King county for a consideration of $700. At the time of making the contract, Mrs. Bowers paid upon the purchase price the sum of $10. Mrs. Bowers and the agent, who seemed to have made the contract in the absence of third persons, disagree as to its precise terms, but it appears that Mrs. Bowers made small payments on the purchase price from time to time, which aggregated on September 6, 1907, the date on which the last payment was made, the sum of $100. Nothing further was done in the matter until March, 1907, when the respondent Charles W. Good waited upon Mrs. Bowers, and told her that he could wait no longer for the balance of the purchase price. This call was made upon Friday, March 1, 1907, and Mrs. Bowers desired him to give her until the next Monday in which to raise the money. This he refused to do, but, as she testifies, did agree to give her until the next day at noon. She further testifies that she appeared at his office on the next day at noon with the money, when Good refused to receive it, declaring that he would not carry out the contract. On March 4th thereafter all money paid by Mrs. Bowers, and $10 additional, was returned to her in settlement of her rights under the contract. This action was begun by Mrs. Bowers and her husband in May, 1907, to recover damages for the breach of the contract of sale. To a complaint alleging the contract and its breach the respondents first answered by a general denial, but on the day the case was called for trial they obtained permission and filed over the appellant's objection an amended answer, in which they denied the contract as alleged by the plaintiffs, and set up affirmatively an oral contract of sale, the failure of the plaintiffs to perform, and its subsequent settlement and release. To this a reply was filed, averring that the money returned to Mrs Bowers, and alleged to be in settlement of the contract between the parties, was so returned without the knowledge or consent of her husband, and against the will of Mrs. Bowers she being induced to accept the same by false and fraudulent representations made to her by Mr. Good and his agent, Mrs. Underwood. On the issues thus made a trial was had before the court without a jury, resulting in findings and a judgment in favor of the respondents.

It is first assigned that the court erred in permitting the amended answer to be filed on the day the cause was set for trial. It is said that the answer introduced a new issue in the case one upon which the plaintiffs did not come prepared to try, and that the affirmative matter in the answer was inconsistent with the denials. But we do not think either of the objections is well taken. The statutes permitting amendments to pleadings were enacted in the furtherance of justice, and under them amendments are properly allowed at any stage of the case, when to allow them will not operate to the prejudice of the opposing party. The fact that the amendment may introduce a new issue is not alone ground for denying it. The true test is found in the answer to the question, Is the opposing party prepared to meet the new issue? His remedy, therefore, when a new issue is sought to be presented by an amendment, is not to object to it merely, but to show in addition that he is unprepared to meet the new issue. In such a case the trial court will in its discretion either continue the case in order to allow him to prepare for trial of the new issue or deny the right to amend. This question was presented in the case of Daly v. Everett Pulp & Paper Co., 31 Wash. 252, 71 P. 1014, where the court said: 'This court has heretofore construed the statute as intending much liberality in the matter of amendments in furtherance of justice. In Barnes v. Packwood, 10 Wash. 50, 38 P. 857, three amended answers had already been filed, and at the time of the trial the court permitted a fourth to be filed. The court observed ...