Chatfield v. Williams

Paterson, J. It is alleged in the complaint that plaintiff and defendants entered into an agreement of which the following is a copy:—

"Biggs, Cal., March 29, 1888.

"Received from C. E. Chatfield three hundred dollars, for which McDaniel & Co. agree to cause to be conveyed, by bargain and sale deed, to said C. E. Chatfield, the following land in Butte County, California,'shown on the plat of Pitt’s addition, and upon the terms following, to wit: Lot Eo. one (1), containing 4.45 acres, in said Pitt’s addition to the town site of Biggs, as per map on file with the recorder of Butte County, payable at Biggs, as follows: $434.25 on or before October 1st, from date, with eight per cent interest. Time is hereby expressly agreed to be the essence of this agreement.

“ McDaniel & Co.”

That plaintiff on October 1, 1888, tendered to defendants said sum of $434.25, with interest, and demanded that defendants cause the lands to be conveyed to him, but they refused, and still neglect and refuse, to convey the same or return to plaintiff the three hundred dollars paid by him. The prayer is for a judgment for the sum of three hundred dollars, with legal interest and costs. [520]The defendants, in their answer, admit the execution of the contract, but “ deny that on the first day of October following plaintiff tendered to defendants the further sum of $434.25, with interest thereon from the twenty-ninth day of March, 1888, at eight per cent per annum, and demanded that defendants cause to be con-xeyed to him, by bargain and sale deed, the lauds abox’e described; that defendants failed, neglected, or refused to convey said property to the plaintiff, and still do fail, neglect, and refuse to convey the same, or to return to the plaintiff said sum of three hundred dollars paid by him on said contract.” The bill of exceptions shows that the case was regularly set for trial on September 17, 1889; that on that day both parties appeared and announced themselves ready for trial; that upon the pleadings being read to the court, the plaintiff moved for judgment on the pleadings, on the ground that none of the material allegations of the complaint had been denied; that thereupon defendants asked permission to amend their answer by denying that any tender was made on October 1, 1888, or before, or at any time, and the court denied the motion.

We think the amendment ought to have been allowed. The answer was filed on April 28,1889, and no demurrer or motion to strike out was filed, and no notice that judgment on the pleadings would be asked was given, until the parties announced themselves ready for trial, September 17th. There was an attempt to deny the allegation as to tender, and there is nothing in the record to show that it was not made in good faith. It does not appear that any delay would have been caused by the proposed amendment; but if there had been, the court could have required an immediate amendment, and imposed terms commensurate to the time and expense of the continuance. The denial is verified. It may be, as claimed by respondent, that the learned judge had reason to believe, from continuances and other pro