Martin v. Luger

• Decision Date: 15 December 1898
• Citation: 8 N.D. 220,77 N.W. 1003
• Parties: MARTIN v. LUGER et al.
• Court: North Dakota Supreme Court

8 N.D. 220

77 N.W. 1003

MARTIN

v.LUGER et al.

Supreme Court of North Dakota.

Dec. 15, 1898.

Syllabus by the Court.

1. The authority vested in courts under the law to allow amendments to pleadings is conferred to promote the ends of justice, and should therefore be liberally exercised by the courts, and, in cases of reasonable doubt about the propriety of an amendment, the better and safer practice is to allow the amendment to be made. The controlling principle is, or should be, whether a proposed amendment, if allowed, would further the ends of justice. The discretion to allow or refuse amendments to pleadings is a legal, and not an arbitrary, discretion. To arbitrarilyrefuse to allow an amendment which should be allowed is an improper exercise of judicial discretion.

2. Upon the state of facts set out in the opinion, held, that the refusal of the trial court to allow a proposed amendment to the answer was prejudicial error.

Appeal from district court, Cass county; Charles A. Pollock, Judge.

Action by Terence Martin against Ferdinand Luger and Peter Luger, co-partners under the firm name of Luger Furniture Company. Verdict for plaintiff. From an order denying a new trial, defendants appeal. Reversed.

W. C. Resser and John E. Greene, for appellants. Benton & Bradley, for respondent.

WALLIN, J.

This case is now before this court for a second time. See Martin v. Furniture Co., 6 N. D. 351, 70 N. W. 1134. In the former case, which was reversed, the trial court directed a verdict for the defendants. At the second trial of the action, the court below directed a verdict for the plaintiff. The action is based upon a subscription contract, whereby the defendants agreed in writing with the plaintiff to pay plaintiff the sum of $200, as defendants' part of a subscription to a bonus for the refitting of a certain building to be used as an hotel in the city of Fargo. Defendants admit that they signed the subscription contract, and it is conceded that the plaintiff refitted the building, and converted the same into an hotel, in accordance with the terms of the subscription. The complaint, after setting out the subscription contract, alleged performance thereof on plaintiff's part, and demanded judgment for $200 and interest thereon. The defendants' answer to the complaint, so far as material, is as follows: “Defendants, further answering, allege that, at the time they subscribed the paper mentioned in paragraph 2 of said complaint, the said plaintiff, Terence Martin, as a part of said subscription, and cotemporaneous therewith, and in consideration of the said subscription, promised and agreed with the defendants to purchase of the defendants the furniture and furnishings for the said hotel, and signed, executed, and delivered to these defendants at the same time an instrument, which instrument is in the words and figures following, to wit: ‘Fargo, N. D., January 4, 1895. This memorandum is to witness that Luger Furniture Co. has this day subscribed $200.00 towards payment of a bonus to Terence Martin, or his assigns, for changing and refitting the “Argus Building,” Fargo, N. D., into an hotel, upon the following conditions: That if said Martin, or Robert O'Brien, does not furnish said hotel, and if the party that does or may furnish said hotel, other than said Martin or O'Brien, does not buy furniture or furnishings from said Luger Furniture Co. to furnish said hotel, then the subscription of $200.00 above named shall be null and void, and of no effect. But if said Martin or O'Brien does furnish said hotel, or if the person who may furnish same does buy the furniture from said Luger Furniture Co., then said subscription is to be and remain in full force and effect. Terence Martin.’ That, relying upon the promise of the said plaintiff that he would purchase the necessary furniture and furnishings for said hotel of defendants, the defendants were induced, by the said plaintiff, to subscribe the said sum of $200.00, and said subscription was made solely upon the said representations and promises of the said plaintiff that he, or the person who did furnish the said hotel, would buy the furniture and furnishings for the said hotel of the defendants, and not otherwise. That the said plaintiff did furnish the said hotel building, but, wholly neglecting and disregarding his said promise and agreement with the defendants, the said plaintiff bought of other dealers than the defendants herein the furniture and furnishings for the said hotel Wherefore defendants demand that they be dismissed hence, with their costs.” At the first trial, the district court ruled that the memorandum set out in the answer was a contemporaneous writing, relating to the subject-matter of the subscription contract, and as such was to be construed as part and parcel of the subscription contract, and, so construing it, the district court held that the same was a stipulation which released the defendants from their obligation to pay the subscription, in the event that plaintiff did not purchase the furniture for the hotel of the defendants, or procure some one else to do so. In construing the memorandum, the district court at the first trial held that plaintiff, who, as is conceded, had furnished the hotel himself, and had not purchased any part of the furniture of the defendants, could not recover, and accordingly directed a verdict in favor of the defendants. On appeal, this court took an opposite view of the memorandum, and ruled that the same did not, when properly construed, release the defendants from their obligation to pay the subscription upon the event of the failure of the plaintiff to purchase the hotel furniture from the defendants. After the record was transmitted to the court below, other proceedings were taken in the district court, and the same are embraced in the record now before this court. From this record it appears that the defendants made three several applications in the court below to amend their answer. These applications were all denied, and the rulings thereon are assigned as error in this court. In their first application to amend, the defendants sought to so reform said written memorandum as to make it correspond to and support the alleged agreement pleaded in the answer, to the effect that plaintiff agreed unconditionally to purchase the hotel furniture of the defendants, and that such agreement was the sole consideration of the subscription contract entered into by the defendants. This proposed amendment being disallowed, the defendants next applied for leave to amend their answer in such a way as to wholly eliminate therefrom said written memorandum. This was also denied, and subsequently the defendants sought to amend in manner and form as they had offered in their first application to amend. This offer was also overruled, and the case went to trial on the original pleadings, and resulted in a directed verdict in favor of the plaintiff, after excluding defendants' oral evidence. A new trial being denied, the defendants appeal from the order denying the same.

The question presented upon said assignments of error is whether such refusals to allow the amendments to the answer were a proper exercise of the...