Coykendall v. Jackson

PLUMMER, J.

Appellant began this action seeking a declaratory judgment under the provisions of section 1060 of the Code of Civil Procedure. The defendants interposed a demurrer to the plaintiff’s complaint, which was sustained by the court without leave to amend. The appellant thereafter made a motion to vacate -the order of the court denying the privilege to amend his complaint, which motion was denied. Judgment was thereafter entered in favor of the defendants. From this judgment the plaintiff appeals.

While ordinarily the court will permit an amendment to a complaint, this action is largely within the discretion of the court, and the filing of an amended complaint is not a matter of absolute right.

(Billesbach

v.

Larkey,

161 Cal. 649 [120 Pac. 31];

Davidson Inv. Co.

v.

Dabney,

103 Cal. App. 392 [284 Pac. 673].)

That the court did not abuse its discretion satisfactorily appears from the following

résumé

of the complaint and the cause of action attempted to be alleged. The complaint alleges that certain of the defendants, on or about the 31st day of August, 1934, being a copartnership, entered into a contract in writing with the defendant, Chester G. Mills. This contract is set forth in Exhibit “A”, attached to the complaint and made a part thereof. This contract, so far as material here, is in the following words and figures:

“This agreement made and entered into this 31st day of August, 1934, by and between Power Seal Co., a copartnership, consisting of Lyle G. Jackson and N. E. Woolman, first party, and Chester G. Mills, second party,

“Witnesseth:

“That, Whereas, first party is the inventor and manufacturer of certain merchandise and material known as ‘Power Seal' for use in internal combustion engines; and

“Whereas, second party is desirous of undertaking the sale, advertising and exploitation of said product;

“Now, Therefore, in consideration of, and subject to the terms, conditions and agreements herein contained, it is mutually understood and agreed as follows: