Pacific Co. v. Cronan , 82 Or. 388 ( 1916 )

Mr. Justice McBride

delivered the opinion of the court.

1. The court did not err in submitting the case to the jury, as the defendant’s evidence tended in some degree to show that Meeker and the defendant never came to a final, definite agreement as to the terms of payment. While a defendant cannot amend upon the trial by introducing an entirely new cause of defense, we do not think the rule goes so far as to prohibit the amendment of what, in view of the facts in the case, was an obvious clerical error or oversight. At the time the deposition of the first witness for plaintiff was taken, which was several days before the trial, it must have been apparent to counsel for plaintiff that the defense was proceeding upon the theory that the matter alleged in paragraph II was in issue and that a negation of it was the principal defense relied upon. The plaintiff examined the witness Meeker as to the first dealings between himself and defendant where the offer was made by defendant to sell the stock with the land included, and further as to a communication from the Walters corporation informing him that they had the bank for sale without the land. Upon cross-examination the plaintiff’s counsel objected that these matters were not within the issues pleaded, but did not call specific attention to this particular defect as to denials. The deposition of this witness was offered on the trial, and it does not appear that the objections raised at the time the deposition was taken were saved in the Circuit Court. The plaintiff having gone into the question of the contract fully upon this subject and treated the matter of the substance of the contract as if it were actually in issue was in no position to object to testimony that it was not, in fact, in issue as a matter of technical pleading. Plaintiff evidently was not misled in any respect by the omission as its counsel presented its side of the case precisely as though the allegation were denied, and having done so should not be allowed to change its theory when defendant merely met the testimony introduced by it. The objections made to defendant’s testimony, while perhaps technically sufficient, were not calculated to inform the court or opposing counsel of the particular defect in the pleading upon which plaintiff relied. In fact, the real purpose of the objections was shrewdly masked behind generalities, and it was not until counsel by a motion to direct a verdict disclosed the fact that, like Ah Sin of poetic memory, he had a surreptitious “right bower” in reserve in the shape of an omitted denial that the court and counsel discovered the nature of the objections to the testimony.

2. The allowance or refusal of an amendment is largely a matter of discretion of the court, and must depend upon the peculiar circumstances of each particular case; the general rule being that the ruling of the trial court upon the question will not be disturbed unless there is an abuse of discretion or an absolute disregard of some affirmative statute. It is also univers ally held that the courts should he liberal in granting such amendments when it is evident that such permission will be in furtherance of justice, and this is particularly the case in respect to defendants: Bliss, Code Pleading (3 ed.), § 430; 1 Cyc. 518; 31 Cyc. 422. The reason for this discrimination in favor of a defendant is that, while a plaintiff, whose evidence is shut out by reason of a lack of a material allegation, may take a nonsuit and begin again, the defendant has no such remedy, but must lose irretrievably.

3. We are of the opinion that the plaintiff by proceeding in the introduction of evidence upon the theory that the nature of the contract was in issue was estopped to assert that such fact had not been technically put in issue by the pleadings, and that the action of the court in permitting the defendant to meet the .evidence so introduced and to amend his answer to conform to the facts proved was not an abuse of discretion, but, on the contrary, was in furtherance of justice, the ultimate aim of which is to allow every party a fair trial upon the merits. Plaintiff having opened the door for the reception of such evidence cannot complain because the defendant and the court treated his example as good law: Charlton v. Scoville, 68 Hun, 348, 22 N. Y. Supp. 883.

The judgment is affirmed. Affirmed.

Mr. Chief Justice Moore, Mr. Justice Burnett and Mr. Justice Benson concur.