Thomas v. Price

• Decision Date: 12 December 1903
• Citation: 74 P. 563,33 Wash. 459
• Parties: THOMAS et ux. v. PRICE.
• Court: Washington Supreme Court

74 P. 563

33 Wash. 459

THOMAS et ux. v. PRICE.

Supreme Court of Washington

December 12, 1903

Appeal from Superior Court, Spokane County; William E. Richardson Judge.

Action by W. E. Thomas and wife against John R. Price. From a judgment for plaintiffs, defendant appeals. Affirmed.

Adolph Munter, for appellant.

Ernest C. Macdonald, for respondents.

DUNBAR J.

This is an action on a promissory note given by defendant to plaintiffs on September 28, 1901, for $700, payable 30 days after date. Defendant denied plaintiffs' ownership of said note, and also pleaded by way of counterclaim to ownership of a note made by plaintiffs severally and jointly with one J. E. McGinnis on February 13, 1893, bearing interest at the rate of 5 per cent. per month, payable to the order of G. M. Nethercutt, and on July 30, 1901, sold and assigned by said Nethercutt to defendant, on which note certain payments were in the answer alleged to have been made, and on which at the time of the commencement of this action there was due a balance of $149.85 in excess of the note owned by plaintiffs, for which amount defendant asks judgment. Upon the trial, plaintiffs proved the execution of their note by defendant, and ownership thereof by plaintiffs, and rested. After the introduction of the note which was pleaded as a counterclaim, plaintiffs asked permission to amend their reply by pleading the statute of limitations against the note set out in the cross-complaint. This permission was granted over the defendant's objection. The cause went to trial, and proof to the satisfaction of the jury was made that the last payment which would have prevented the statute of limitations from running was not made as a payment on the note, but was a payment for notarial services. The jury brought in a verdict for plaintiffs, and, after defendant's motion for a new trial had been overruled, judgment was rendered against defendant, from which judgment this appeal is taken; and the only error assigned is that the court erred in permitting the amendment to the reply by pleading the statute of limitations at the time such permission was given.

Great latitude in the amendment of pleadings is conferred upon the trial court by the statute, and the appellate courts in all jurisdictions have been liberal in construing this power. It is claimed by the appellant that one of the well-defined limitations is that there must not be an entire departure from the original cause of action and defense, and that it must be done in furtherance of justice. The basis of appellant's contention, and the only ground upon which it can be sustained, is that the statute of limitations is an unconscionable defense. But, in accordance with the weight of authority, this court has held that it is a defense which litigants have a right to plead, and that in the trial of a cause it should not be discriminated against, but should be treated as any other defense. In Morgan v. Morgan, 10 Wash. 99, 38 P. 1054, it was held not an abuse of discretion for the court, after a hearing of the cause, to allow an amendment correcting a mistake, although the equities of the case might have been in favor of the plaintiff. This court, after stating the ground of appellant's contention, that it was an abuse of discretion to permit the amendment, and that amendments should only be allowed in aid of justice, not of injustice said: 'A number of authorities are cited as sustaining the proposition that the amendment should not have been permitted. But we think that the action of the lower court was right in the premises. * * * Under the weight of the authorities, the statute of limitations is not, now at least generally regarded as an unconscionable defense. We regard this as so well settled that we deem a citation of many authorities unnecessary, but refer to Wood v Carpenter, 101 U.S. 135 ,' where that...