Chlein v. Kabat

• Decision Date: 29 June 1887
• Citation: 33 N.W. 771,72 Iowa 291
• Parties: CHLEIN v. KABAT.
• Court: Iowa Supreme Court

72 Iowa 291

33 N.W. 771

CHLEIN

v.KABAT.

Supreme Court of Iowa.

June 29, 1887.

Appeal from circuit court, Dubuque county.

Action upon a promissory note. There was a trial by a jury, and verdict and judgment were rendered for the plaintiff. The defendant appeals.H. T. McNulty and Graham & Cady, for appellant.

James H. Shields, for appellee.

ADAMS, C. J.

The note in question was executed by one J. Kabat and his wife, the defendant, E. Kabat, and was given for borrowed money. Mrs. Kabat, in her answer, averred that she signed the note without consideration; that the money was borrowed by her husband alone, and that the note was executed and delivered by him alone, and afterwards, at the mere request of the plaintiff, she signed it also. She also averred that afterwards she obtained permission of the plaintiff to erase her name from the note, and did erase it. The note, as offered in evidence, shows the erasure. There was evidence tending to show that at least a part of the money was loaned by the plaintiff to Mrs. Kabat, and that she signed the note in pursuance of her own contract, made at the time of the loan. There was evidence also tending to show that the erasure was made wrongfully by Mrs. Kabat, and without the plaintiff's consent. There was also evidence tending to show that the note was delivered on Sunday, but such fact had not been pleaded. After the evidence had all been introduced, the defendant asked leave to amend her answer, and aver that the note was delivered on Sunday. The court refused to allow the amendment, and the defendant assigns the refusal as error.

The statute provides that “the court may, on motion of either party, at any time, in furtherance of justice, on such terms as may be proper, permit such party to amend any pleading * * * by inserting other allegations material to the case; or, when the amendment does not substantially change the claim or defense, by conforming the pleadings or proceedings to the facts proved.” Upon what ground the court refused leave to amend does not appear; but in our opinion the refusal might properly enough have been made upon the ground that the amendment was not asked in furtherance of justice. If the defendant borrowed the plaintiff's money, she ought to repay it. It is true it was her right, in the outset, to set up and prove, if she could, that the note was a Sunday contract; but such defense would be purely technical. It is provided by statute, not for the purpose of effectuating justice between the parties, but to discourage the making of Sunday contracts. It is a clear case of a technical defense, provided by statute in the interest of what is deemed public policy, and barren of justice as between the parties. It is said, to be sure, that it has been held to be allowable to amend for the purpose of setting up the defense of the statute of limitations. Phœnix Ins. Co. v. Dankward, 47 Iowa, 432. But the principle involved is entirely different. The statute of limitations is based upon the theory that the time allowed for the commencement of an action is as long as the defendant can justly be required to preserve the evidence of his defense. The statute is provided...