Reynolds v. Mead

STURTEVANT, J. The plaintiff as guardian of A. L. Reynolds, an incompetent person, commenced an action against the defendant. In his second amended complaint he pleaded a cause of action to quiet title and a cause of action for rescission. The defendant answered, both counts. The trial court made findings in favor of the defendant. From the judgment entered thereon the plaintiff appealed. He claims the judgment is not sustained by the evidence. We think he is mistaken.

In 1936, A. L. Reynolds was the owner of a certain lot in Ukiah. On it was a house in which he lived. He was also the owner of certain furniture and other personal property which was contained in the house. Prior to July 27, 1938, the owner had mortgaged said real estate to George E. Cook to secure the payment of a promissory note and on said date the balance due on said note was $389. On said date the owner executed four several documents and placed them in escrow to be delivered to the defendant upon the death of [180]said A. L. Reynolds. Said documents were (1) a deed conveying said real estate; (2) a bill of sale conveying said personal property; (3) an agreement admitting services rendered and providing for services to be rendered; (4) escrow instructions. By a provision in the “agreement” the defendant agreed that the conveyance of the real estate was subject to the mortgage in favor of George R. Cook. Later, January 13,1941, defendant gave Cook his note for $394.84 and a mortgage on the real estate to secure the payment of said note. That transaction was done to secure the claim of Cook and was done with the intention of substituting the later mortgage for the earlier one. All of the evidence about the later mortgage was objected to by the plaintiff. At first the objection was sustained because such transaction had not been alleged. Later that ruling was reversed. The trial court held it showed a novation. Therefore the court ruled that the evidence should stand, that the defendant should amend by pleading the novation, and that a finding in support of the novation should be made. Later the defendant amended his pleadings to conform to the proof. The plaintiff objects to said rulings of the court and the procedure of the defendant as not proper practice. His specific objection is that “the issues should be joined by the pleadings before trial so that a litigant would know what facts he had to meet . . .” That contention is sound but there are exceptions. (49 C. J. 530, Pleading, sec. 703 et seq.) Where, as here, the amendment is necessary to prevent a failure of justice the allowance of an amendment is specially appropriate. Farmers’ Nat. Gold Bank v. Stover, 60 Cal. 387, is determinative of the question presented in the instant case. The facts are nearly parallel. However in that case the evidence offered was stricken out and permission to amend was denied. On page 395 the court said: