Garrison v. Goodale

• Citation: 23 Or. 307,31 P. 709
• Parties: GARRISON v. GOODALE.
• Decision Date: 26 December 1892
• Court: Supreme Court of Oregon

31 P. 709

23 Or. 307

GARRISON v. GOODALE.

Supreme Court of Oregon

December 26, 1892

Appeal from circuit court, Lane county; MARTIN L. PIPES, Judge.

Action by S.O. Garrison against J.C. Goodale on an oral agreement to pay a chattel mortgage. From a judgment for plaintiff defendant appeals. Affirmed.

The other facts fully appear in the following statement by MOORE J.:

This is an action brought upon a complaint which, in substance, shows that on July 3, 1889, one W.H. Striker executed and delivered to plaintiff his promissory note for $1,250, payable in one day from that date, and at the same time, in order to secure the payment thereof, executed and delivered to plaintiff his chattel mortgage upon a quantity of saw logs, which mortgage was duly filed, and became a lien thereon; that on January 10, 1890, Striker paid plaintiff $700, which sum was indorsed on the note, and a portion of the saw logs were released from the lien of the mortgage; that on March 14, 1890, Striker without the knowledge or consent of plaintiff, sold and delivered to defendant the remainder of the saw logs described in the mortgage, and the defendant, in consideration of the release of the mortgage, agreed and promised to pay plaintiff the amount then due on the note and plaintiff, relying upon the promise of the defendant, released the property from the lien of the mortgage, and allowed it to expire; but that defendant had not paid any part of this sum. An answer was filed denying each allegation of the complaint except the sale of an undivided one half of the saw logs, and averring that the other undivided one half was then owned by another person. A reply was filed November 14, 1891, and the trial postponed until the March term, 1892, of the court, which began on the 7th of that month. On the 11th of March, when the case was called for trial, and while the jury was being impaneled, the defendant, without having given any notice thereof nor reasons therefor, moved the court for leave to file an amended answer, which, in substance, contained the following, in addition to the original: It alleged a settlement between plaintiff and defendant, made some time subsequent to the purchase of the logs from Striker, whereby the defendant agreed to pay to the plaintiff a given sum for each 1,000 feet of logs secured by him from the mortgaged stock; and also alleged a payment of money by the defendant to the plaintiff, which was pleaded as a set-off and counterclaim to the claim of plaintiff. The court denied the motion, and defendant was obliged to go to trial, at which evidence was admitted, over the objection of defendant, that tended to prove that the contract between Striker and defendant for the sale of the logs was completed March 14, 1890, at about 9 o'clock in the morning, and that during the negotiations the defendant said he intended to make a contract with plaintiff to pay off the Striker mortgage if plaintiff would release the logs; that he had to do this before Striker would do anything about selling the logs to him. And in rebuttal the evidence tended to prove that, before Striker would agree to sell the logs or make a bill of sale of them, the defendant was obliged to agree to pay plaintiff the amount of his mortgage; that at that time the amount so due on the mortgage was computed, and defendant agreed to pay it, before any bill of sale was drawn up for the transfer of the logs. A verdict and judgment were rendered for plaintiff, from which defendant appeals, and assigns as error the refusal of the court to grant defendant leave to amend the answer, the introduction of this testimony, and the charge of the court in relation to the same; and claims that any declaration made by defendant in relation to the expression of an intention to settle with plaintiff and to pay him more than the value of the logs was not a part of the res gestae.

L. Flinn and A.E. Gallagher, for appellant.

A.C. Woodcock and Geo. A. Dorris, for respondent.

MOORE, J., (after stating the facts.)

Section 101, Hill's Code, provides that the court may at any time before trial, in furtherance of justice, and upon such terms as may be proper, allow any pleading or proceeding to be amended when the amendment does not substantially change the cause of action or defense. The application to amend a pleading is always addressed to the sound discretion of the trial court, and upon appeal the action of the court below will not be reviewed, except for an abuse of this discretion. Henderson v. Morris, 5 Or. 27; Hexter v Schneider, 14 Or. 187, 12 P. 668; Wallace v Baisley, 22 Or. 574, 30 P. 432. In Swift v. Mulkey, 14 Or. 63, 12 P. 76, THAYER, J., says: "Great liberality in amending pleadings under our system should be shown when the justice of the case requires it. The court should always be careful that the opposite party be not misled to his prejudice, and this can be avoided in almost every case by granting a continuance. When a party comes into court in good faith with his action or suit, he should not be turned out on account of a technicality or mistake which an amendment will obviate, when it will do no substantial injury to the opposite party." The power of amendment under the Code ought to be liberally exercised in furtherance of justice. Baldock v. Atwood, 21 Or. 79, 26 P. 1058. Courts are, or should be, much more liberal in allowing amendments asked for by the defendant than by the plaintiff, for the reason that the plaintiff may suffer a nonsuit, and commence another suit or action, while, if the defendant were denied this privilege, he would forever lose his defense, and be without remedy. Bliss, Code Pl. § 430. In Miller v. Perry, 38 Iowa, 303, ...