Link v. Jarvis

BELCHER, C. This action was commenced on July 12, 1889, to recover the sum of $600, money had and received by the defendant for the use and benefit of the plaintiff. Issue was joined, and when the case came on for trial, on the objection of the defendant, the testimony on the part of the plaintiff was excluded by the court, as not admissible under the complaint. The plaintiff thereupon asked leave to file an amended complaint, and, over the objection of defendant, his application was granted, on condition that he pay all costs of the action up to the time of filing the amendment. The costs were paid, and amended complaint was filed September 18, 1890. The new complaint alleged that in October, 1887, the plaintiff gave to the defendant the sum of $600, under an agreement that defendant would do for the plaintiff certain specified things; that plaintiff afterward demanded of defendant that he perform his agreement, but that he then refused, and has ever since refused, to do so, to plaintiff’s damage in the sum of $600, for which he asked judgment, with interest. The defendant answered to the complaint, and, among other defenses interposed, pleaded in bar of the action subdivision 1 of section 339 of the Code of Civil Procedure. The case was tried by the court, and all the findings were in favor of the plaintiff. Among other things, the court found that the plaintiff made frequent demands of the defendant that he comply with his agreement, but that he continuously neglected and delayed so to do, and on October 1, 1888, finally and absolutely refused so to do, and that the action was not barred by the section of the code pleaded. Judgment was accordingly entered in favor of the plaintiff for the sum prayed for, with interest thereon from October 1, 1888. From the judgment so entered, and an order denying his motion for new trial, the defendant appeals.

The first point made for a reversal is that the court erred in allowing the plaintiff to amend his complaint, after having proceeded to trial upon the original complaint and answer. [752]There was no error in the ruling complained of. The code provides that courts may allow amendments to pleadings “upon such terms as may be just” (Code Civ. Proc., sec. 473), and the rule is well settled that applications to amend pleadings are addressed to the discretion of the trial court, and should be allowed at any stage of the trial, when necessary for the purposes of justice: Farmers' Nat. Gold Bank v. Stover, 60 Cal. 387; Walsh v. McKeen, 75 Cal. 519, 17 Pac. 673; Guidery v. Green, 95 Cal. 630, 30 Pac. 786.