Mills v. Jackson

BURNETT, J.

The action was in replevin. It grew out of the purchase by plaintiff of certain real and personal property for the sum of $35,000. At the time of the agreement for the sale a memorandum was drawn up by Mr. Mills and signed by Mr. Jackson, as follows:

“March 8th, 1911, received of Robt. M. Mills $500, being part of the purchase price, for the ranch, known as the Arbaugh Ranch and the Arenburgh Ranch and also the ranch known as the French Ranch in McCloud or Squaw Valley ranch, containing in all 965 acres with all appurtenances, also all personal property on said ranches, live stock, hay and grain, farm and dairy implements, furniture, and &e.

“Except 14 head horses, 2 doz. chickens, and piano and parlor table and hall piece, one saddle and bridle.

‘ ‘ Consideration for the three above named- ranches thirty-five thousand dollars to be cash payment.”

The balance of the consideration was afterward paid by plaintiff but a dispute arose as to the articles of personal property covered by the agreement, and hence this suit. Before trial plaintiff was permitted to amend his complaint by excluding some of the personal property claimed therein and, after the evidence was in but before submission of the case, another amendment was allowed setting up an equitable estoppel against defendant Emma H. Jackson. The jury trying the case found the following verdict: “We, the jury impaneled to try the case wherein Robert M. Mills is plaintiff and Thomas J. Jackson and Emma H. Jackson are defendants, do find for the plaintiff and fix the value of the property mentioned in the complaint at the sum of $833, eight hundred and thirty-three dollars.”

We deem unnecessary elaborate treatment of the points made by appellant, as the principles involved are elementary

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and. familiar. Neither do we feel called upon to set out the evidence, as it is known to the parties and can be of no particular importance to anyone else.

That it was within the discretion of the court to permit the plaintiff to file the said amendments to his complaint we entertain no doubt. The purpose was to promote the determination of the cause upon its merits with as little expense and trouble as possible, and the proceeding was clearly within the letter and the spirit of our reformed procedure. No reason is apparent why a party who brings an action and subsequently discovers that he is entitled to only a portion of that for which he sues should not be permitted by amendment to •his complaint to invoke the judgment of the court or jury upon the real issue between the parties. It seems difficult to understand why he should be compelled to try the title to something to which he has found out before trial that he had no title and when he has concluded not to assert title to it. Of course, if defendants had been taken by surprise or put to additional expense, no doubt the court, upon a proper showing, might and would have imposed terms upon plaintiff,' but no such case is presented. It is equally clear that, upon principle and authority, the court was justified in allowing an amendment to conform to the proof. The complaint was framed upon the theory that the property was sold to plaintiff by the defendants. There was evidence at the trial that defendant Emma IT. Jackson was not an actual vendor, but that she represented to the purchaser that she had no interest in the property but that it belonged solely to her husband, defendant, Thomas J. Jackson. It was to meet this theory that the amendment was allowed. The equitable estoppel thereby pleaded was undoubtedly germane to the issue of ownership, which was before the jury for determination. Upon this branch of the case it is deemed sufficient to cite the following authorities: Sections 469 and 470, Code of Civil Procedure;