Pacific Co. v. Cronan

Pleading — Amendment During Trial — Variance. 1. Where defendant, by evident clerical error, failed to deny material allegations, the rule against amendment changing the cause of aetion does not prevent amendment to enter the denial, especially where both parties went to trial on the theory that such matters were at issue, and plaintiff’s only objections were too general to indicate the defect. Pleading — Amendment During Trial — Variance. 2. The allowance or refusal of an amendment is largely a matter of discretion of the court and depends on circumstances of the particular case. Pleading — Amendment During Trial. 3. Courts should be liberal in granting amendments pending trial, when it is evident that such course will further justice, particularly in the case of the defendant. [As to how far an amendment, varying or altering cause of action, is allowable, see notes in 34 Am. Dec. 158; 51 Ami St. Rep. 414.]

From Morrow: Gilbert W. Phelps, Judge. Department 1. Statement by Mr. Justice McBride. This is an action by the Pacific Company, a corporation, against J. E. Cronan to recover commission for services in procuring a purchaser for bank stock. The complaint, omitting formal matters, is substantially as follows: “I. That the Charles E. Walters Company at all times hereinafter mentioned was, is, and has been a corporation organized and existing under the laws of the State of Iowa, and having complied with all the laws of the State of Oregon with reference to nonresident corporation, and at all times was authorized to do business in the State of Oregon. “II. That on or about the twenty-fourth day of October, 1913, in the City of Portland, Multnomah County, Oregon, the defendant herein orally agreed with the Charles E. Walters Company, a corporation, that if the Charles E. Walters Company would procure a purchaser ready, able and willing to purchase from J. E. Cronan 202 shares of stock in the Bank of lone, located at lone, Oregon, at the book value of said shares of stock, which was estimated to be $55 per share, that defendant would pay said the Charles E. Walters Company 5 per cent of the total price for which said shares of stock were sold or at which the said the Charles E. Walters Company procured a purchaser. “III. That terms as to the time of payment by the purchaser of said shares of stock were to be made by said J. E. Cronan at the time a purchaser was procured. “IV. That thereafter on, to wit, about the twenty-sixth day of October, 1913, the Charles E. Walters Company did procure a purchaser, to wit, one L. M. Meeker, who was ready, able and willing to purchase said bank stock upon terms fixed by the defendant, and thereupon the Charles E. Walters Company notified the defendant and arranged a meeting between L. M. Meeker and said defendant, which meeting was held on the twenty-sixth day of October, 1913, and terms of payment were arranged so that L. M. Meeker agreed to pay unto said J. E. Cronan for said 202 shares of stock the book value thereof plus 5 per cent upon terms satisfactory to said J. E. Cronan. “V. That said L. M. Meeker as a purchaser was procured solely through the efforts of the said the Charles E. Walters Company and the meeting between said L. M. Meeker and J. E. Cronan was procured solely by the efforts of said the Charles E. Walters Company. “VI. That the book value of said shares of stock at all times herein mentioned was at least $55 per share. “VII. That 5 per cent of the agreed sale price of said 202 shares of stock fixed between said J. E. Cronan and L. M. Meeker is the sum of $555.50. * * “IX. That prior to the commencement of this action, to wit, on the twenty-third day of April, 1914, the Charles E. Walters Company regularly sold and assigned unto plaintiff all of its right, title and interest in the matters covered in this complaint, and the claim of said the Charles E. Walters Company against the defendant.” The original answer denied all of the above paragraphs, except II and VI. Upon the trial plaintiff introduced testimony tending to support the whole case made by the pleadings, including the allegations made in paragraphs II and VI, and the defendant also went into the whole case and offered testimony tending to show that the original offer to sell was coupled with a condition that the purchase was to include certain real estate owned by defendant and not otherwise. He also denied, in substance, that he and Meeker ever came to an agreement as to terms of payment. The plaintiff objected to testimony offered tending to show that the original offer to sell was on condition that the land of defendant should go with the purchase of the stock. There were several objections of this character made, but they were either, general and to the effect that the evidence offered was not within the issues pleaded or merely general without stating the grounds. At no time while the testimony was being offered did counsel for the plaintiff specifically point out or call to the attention of the court the fact that paragraphs II and VT had not been denied. The objections being overruled, counsel for the defendant moved for a directed verdict, and for the first time specifically called attention to the fact that paragraphs II and VI of the complaint had not been denied. Thereupon counsel for defendant moved the court for leave to amend by denying these paragraphs, and, the amendment being permitted, the motion for judgment on the verdict was overruled, to all of which counsel for plaintiff excepted. The matter then went to the jury and resulted in a verdict and judgment for defendant, from which plaintiff appeals.