Hanna v. Hirschhorn

HOUSER, J.

In substance, the facts necessary to a decision in the pending appeal are that by the terms of a contract entered into between plaintiffs on the one side and defendants on the other, defendants agreed to sell to plaintiffs, and plaintiffs agreed to buy from defendants, certain real and personal property at a fixed price, to be paid partly in cash and the remainder of the purchase price by a mortgage on, or a trust deed to, the property, to be executed by plaintiffs in favor of defendants on or before a specified date. In part performance of the provisions of the contract, plaintiffs paid to defendants the sum of $3,500 in cash. About one month after the date specified in the contract for the consummation of the transaction had expired, plaintiffs offered to an attorney, who throughout the negotiations between the parties had represented defendants, to fully perform the conditions as expressed in said contract that were to be performed by plaintiffs, which offer was by said attorney on behalf of defendants refused. Whereupon plaintiffs commenced an action for damages, which resulted in the rendition of a judgment in favor of' defendants, and from which judgment the appeal herein is presented.

In the complaint, among other things, plaintiffs pleaded performance . and “that the time for performance was extended, . . . "

Although by the appeal herein several different legal questions are submitted by the respective parties to this court for determination, it is thought that but one of them requires consideration. It has to do with the question of whether on the trial of the action plaintiffs should have been permitted to amend their complaint by alleging the existence of facts which, if satisfactorily established, might have constituted a waiver by defendants of the provision in the contract by which it was to be performed on or before a certain date specified therein. The situation which by the trial'court was acted upon adversely to the interest of plaintiffs is presented in the following

resume

(found in

[440]

respective counsel at the time when plaintiffs sought from, but were refused by, the trial court permission to amend their complaint in the action then on trial, to wit: