Guidery v. Green

Action to Dissolve Partnership — Agreement Superseding Partnership Contract — Amendment op Answer upon Trial. — In an action for a dissolution and accounting of an alleged partnership, based upon the violation of a written agreement entered into by the defendant with the plaintiff’s intestate, where the defendant denied the partnership, and set up as one of his defenses that the alleged agreement had been superseded and annulled by a subsequent written agreement between plaintiff, defendant, and a third party, and upon the trial, after having proved the execution of the subsequent agreement, sought to show by oral testimony that it had been executed upon the consideration and agreement that the first agreement should be canceled, and all claims of plaintiff’s intestate against the defendant waived thereunder, hut an objection was made to the testimony, upon the ground that it was incompetent, and not responsive to any of the issues raised by the pleadings, which objection was sustained, it is error for the court to refuse to allow the defendant to amend his answer so as to obviate the objection that the evidence was not within the issues.

Id. — Amendment to Allow Proop op Depense — Surprise—Condition op Amendment. — The court should allow the defendant to make amendments to his answer, to enable him to prove facts which will constitute a defense to plaintiff’s demand; and if by reason of such amendments the court is satisfied that the plaintiff is taken by surprise, and requires further time to prepare to meet the defense, it can continue the case, and impose such terms as will compensate plaintiff for the expense and delay caused thereby.

Id.—Duty op Court — Correction op Defective Language — Defense Known to Adversary. — It can very rarely happen that a court will be justified in refusing a party leave to amend his pleading so that he may properly present his case, and obviate an objection that the facts which constitute his cause of action or his defense are not embraced within the issue, or properly presented by his pleading. This rule is especially cogent when the objection to testimony is not that it is then for the first time brought to the notice of the adversary, but that by reason of the language of the pleading it is not within the terms of the issue.

Id. — Parol Evidence — New Written Contract — Superseding Former BY Oral Agreement. — Parol evidence offered for the purpose of' showing that a subsequent written contract, which it is claimed superseded and annulled a prior written contract upon which the action is based, had been executed upon the consideration and agreement that the prior contract should be canceled, and all claims of the plaintiff against the defendant thereunder waived, is not incompetent as having the effect to vary or contradict the terms of either of the written instruments, or to add any terms thereto.