Garrison v. Goodale

Moore, J.

(after stating the facts). — 1. Section 101 of Hill's Code provides that “the court may, at any time beforec,trial, in furtherance of justice, and upon such terms as may be proper, allow any pleading or proceeding to be amended, * * * when the amendment does not substantially change the cause of action or defense. ” In Mitchell v. Campbell, 14 Or. 457 ( 13 Pac. Rep. 190 ), Strahan, J., lays down the rule as follows: “In ordinary cases, the court will not interefere with the discre tion of the trial court in matters of practice before it. The law has wisely vested those courts with very large discretionary powers in such matters; but it is a judicial *310 discretion, not to be capriciously or oppressively exercised. It is a power to be used in furtherance of justice, and not for the purpose of gagging and binding one of the parties to a suit, and then turning him over, in this helpless and defenseless condition, to the tender mercies of his adversary.” The application to amend a pleading is always addressed to the sound discretion of the trial court, and upon appeal the action of the court below will not be reviewed, except for an abuse of this discretion: Henderson v. Morris, 5 Or. 27 ; Hexter v. Schneider, 14 Or. 187 ( 12 Pac. Rep. 668 ); Wallace v. Baisley, 22 Or. 574 ( 30 Pac. Rep. 432 ).

2. The power of amendment under the Code ought to be liberally exercised in furtherance of justice: Baldock v. Atwood et al. 21 Or. 79 ( 26 Pac. Rep. 1058 ). Courts are, or should be, much more liberal in allowing amendments asked for by a defendant than by a plaintiff, for the reason that a plaintiff may suffer a nonsuit and commence another suit or action, while, if a defendant were denied this privilege, he would forever lose his defense and be without remedy: Bliss, Code Pleading, § 430. In Miller v. Perry, 38 Iowa, 303 , the court says: “Under the statute, it is the rule to allow amendments to pleadings; to refuse is the exception. The right is not an absolute, unconditional one, but it is to be allowed in furtherance of justice under a sound discretion. Amendments within the limits of the statute should always be allowed when substantial justice will be thereby promoted, and they should not be refused so as to operate as a denial of justice to either party.” In Tighe v. Pope, 23 N. Y. 181 , the court held, that “where a power is granted for the sake of justice, an exercise of it may be enforced in a proper case. It is not wholly discretionary.” In Swift v. Mulkey, 14 Or. 63 ( 12 Pac. Rep. 76 ), Thayer, J., says: “Great liberality in amending pleadings under our system should be shown, when the justice of the case requires it. The court should always be careful that the opposite party be not misled to his prejudice, and this can be avoided in *311 almost every case by granting a continuance. When a party comes into court in good faith with his action or suit, he should not be turned out on account of a technicality or mistake which an amendment will obviate, when it will do no substantial injury to the opposite party.” In the case at bar, no reason is given, as appears by the record, for the delay, or why the original answer did not contain the proposed amendment. Some reasonable excuse should be made to appear by affidavit, when the motion for leave to amend is made. We must assume that the court did its duty; and in the absence of any affidavits to support the motion, we must also assume that the trial court did right in denying it: Gordon v. Spencer, 2 Blackf. 287 ; Detro v. State, 4 Ind. 202 ; Ray. v. Northup, 55 Wis. 399 ( 13 N. W. Rep. 239 ).

3. Was the statement of the defendant, made prior to the alleged settlement with plaintiff, admissible as a part of the res gestee ? This species of evidence is not admissible, as a general rule, unless it grows out of the principal transactions, illustrates its character, and is contemporaneous with it: Carter v. Buchanan, 3 Ga. 517 ; 1 Greenl. Ev. § 108. “ Declarations made contemporaneously with, or immediately preparatory to, a particular litigated act, and which tend to illustrate and give character to the act in question, are admissible as part of the res gestee”-. People v. Vernon, 35 Cal. 49 ( 95 Am. Dec. 49 , and notes). Hinchcliffe v. Koontz, 121 Ind. 422 ( 16 Am. St. Rep. 403 ; 23 N. E. Rep. 271), was an action upon a contract of employment, which the plaintiff claimed was for the period of one year, while the defendants claimed it was for an indefinite time. The plaintiff was permitted to offer in evidence, as a part of the res gestee, a letter written by defendant, but not received by him till after he had made the contract with the defendants. The court says: “As tending to support the appellant’s claim, the court admitted a letter in evidence written by the defendants the-day before the contract of hiring was made, in which it was stated that one of the latter desired to *312 see him the next day, at a place appointed, with reference to securing his- services as foreman for the coming year. It appeared that this letter, although written the day before, was not received by plaintiff until the day after the contract of hiring was completed, and it is now urged that it was for that reason error to admit it in evidence. This objection is without' merit. The letter was admissible, upon the ground that it was in effect a declaration made contemporaneously with and explanatory of the act of hiring. ”

In Durham v. Shannon, 116 Ind. 403 ( 9 Am. St. Rep. 864 ; 19 N. E. Rep. 190), the court approved the admission of the declaration of the deceased as a part of the res gestee, made two days before his purchase of a horse, that he intended purchasing a colt for plaintiff, on the ground that the declaration was substantially coincident with the act of purchasing.

In the case at bar, the testimony tended to show that defendant had expressed an intention of paying plaintiff’s mortgage. This declaration, it is claimed, was made a few hours before the alleged contract between plaintiff and defendant was consummated. It was admissible as a part of the res gestee for the purpose of illustrating the subsequent agreement. It would not prove that a contract had been made, but was a circumstance from which, the jury might reasonably infer that the defendant had sought the plaintiff for that purpose. So, too, would any declaration be admissible as a part of the res gestae made by the defendant on his way to meet the plaintiff, that he was seeking him for a particular purpose. Such evidence would tend only to show the object and purpose of the meeting; not that it had been accomplished. It was a circumstance which the jury had a right to consider in connection with the evidence of the settlement. Great care should be exercised that too much importance be not placed upon such attending circumstances. The shadow should never be substituted for the substance. The res gestee evidence is never offered except by way of *313 illustrating the principal fact. That portion of the charge of the court that qualifies the admission of this evidence is as follows: ‘‘That evidence is permitted to go to the jury for the purpose of corroborating the story of Mr. Garrison in that respect, and you have a right to consider it, if you believe it to be true, as corroborative of the question whether or not the plaintiff made the contract sued upon;” and we think it correctly stated the law of the case.

It follows that there was no error committed that this court can review, and that the judgment of the court below must be affirmed.