Hartley v. Preston , 2 Mont. 415 ( 1876 )

Wade, C. J.

This was an action to foreclose a mortgage, executed by defendant Preston to plaintiff, to secure the payment of a contract for 61 ounces, 2 pennyweights and 6 grains of gold dust, signed by defendant Thornton as surety, and for a deficiency judgment in case the mortgaged property, upon sale thereof, did not pay the debt.

The defendant Thornton in his answer sets up the defense that he signed the contract with Preston as surety merely, and that plaintiff for a valuable consideration entered into an agreement with Preston to extend the time for the payment of the contract for gold dust for the period of thirty days.

To this answer the plaintiff replied, denying its allegations as to any agreement to extend the time of payment, and asking judgment as in the complaint. The cause was tried to the court without a jury, by agreement of parties. At the conclusion of the testimony, the following extract from the record will show what occurred: “ Here the testimony closed, and the case was argued

and submitted to the com-t, who took the same under advisement. Before the case was submitted defendant Thornton moved the court to declare and find that the plaintiff had not denied the contract for extension of time for thirty days, for a valuable consideration. And afterward, to wit: on the 22d day of April, 1875, and before the court had passed upon the sufficiency of the replication, made its findings or rendered its judgment in the cause, plaintiff moved the court, upon affidavit, showing cause therefor, for leave to amend the replication herein.” Then follow the motion, affidavit and order of the court overruling the motion. Thereupon, on the 4th day of May, 1875, the court made its findings of fact, and rendered judgment in the case, among which findings are the following :

“ 1. That under the pleadings it is admitted that the plaintiff, for a valuable consideration, agreed with the defendant Preston to extend the time of payment of said contract for thirty days.

“ 2. The court finds that the defendant Thornton was not a party to this agreement for extension of time, and that the same was made without his knowledge or consent.”

The exact day when the cause was tried does not appear from the record, but it does appear that the question as to the sufficiency of tbe replication was presented to tbe court upon tbe argument of tbe case after tbe conclusion of tbe testimony, and that afterward, on tbe 22d day of April, 1875, and before tbe court bad passed upon tbe sufficiency of tbe replication, or made any findings in tbe case, tbe plaintiff moved tbe court for leave to amend bis replication, wbicb motion was overruled, and subsequently, on tbe 4tb day of May, findings of fact were made and judgment entered. From these findings, it appears that tbe court beld tbe replication insufficient, and therefore considered tbe averments of tbe answer confessed, and judgment was rendered as on motion for judgment upon tbe pleadings. It further appears from tbe record that testimony was submitted to tbe court upon tbe matters of defense set up in tbe answer.

"We are unable to see, and there is nothing presented in tbe record to show why tbe plaintiff was not permitted to amend bis replication, as bis affidavit showed that be well could, so as to make tbe issues in tbe pleadings correspond with tbe proof. Even after verdict, and after judgment, in furtherance of justice, pleadings may be amended. "We think this case comes within tbe decision of tbe case of Wormall v. Reins, 1 Mon. 630, where it is beld: “ Tbe court may, in furtherance of justice, and upon such terms ás are just, allow tbe amendment of any pleading at any stage of a proceeding. This power is a discretionary one, and this court cannot review tbe exercise of tbe same unless there has been some abuse of that discretion. Courts have frequently permitted pleadings to be amended even after verdict and judgment, to correspond with proofs in tbe case, and I can sée no reason for refusing to allow tbe amendment of a pleading to make it correspond with tbe proofs, before tbe case is submitted to a jury.”

Tbe case under consideration’was tried to tbe court by agreement of parties, but tbe same rules are applicable to it, so far as amendments of pleadings are concerned, as if it bad been tried to a jury. If, upon a trial to a jury, at tbe conclusion of tbe testimony, upon an issue that both parties bad supposed tbe pleadings presented, tbe defendant should move tbe court for judgment upon tbe pleadings, because tbe replication failed to deny tbe defense set up in tbe answer, tbe court would necessarily pass upon sucb motion before submitting tbe case to tbe jury. And if, before passing upon sucb motion, tbe plaffitiff bad asked leave to amend bis replication so as to make tbe issue in tbe pleadings correspond witb tbe issue tried in tbe evidence, we can see no objection to granting sucb motion upon sucb terms as tbe court might deem just. If tbis is tbe rule applicable to jury trials, we tbink it conclusive of tbe case in band. After tbe presentation of tbe question that tbe repbeation admitted tbe defense contained in tbe answer, wbicb was in effect a motion for judgment on tbe pleadings, tbe cause could not bave been submitted to tbe court until tbe determination of tbis motion, as it could not bave been submitted to a jury under bke circumstances, but during tbe pen-dency of tbis motion tbe plaintiff asks leave to file a reply, raising an issue upon tbe averments of the answer, and sucb an issue as bad been abeady tried in tbe proof. ¥e tbink sucb leave ought to bave been granted, especially so when tbe record shows that eleven days elapsed after tbe first presentation of the question as to tbe sufficiency of tbe replication before tbe court found tbe facts and rendered judgment in tbe case.

Tbe respondent, in Ms brief, contends that tbe record does not state tbe facts, and that tbe appellant, upon tbe trial, was granted leave by tbe court to amend bis replication, wbicb be declined. If there was any thing in the record upon which we could base a well-grounded suspicion that tbis was tbe case, tbe judgment would be affirmed at once, for parties cannot refuse to amend pleadings when tbe opportunity is given at tbe right time, and then, upon an intimation of a decision against them, claim tbe privilege. But we bave given a faithful representation of tbe facts contained in tbe record, and there is no intimation contained in it that tbe plaintiff ’ ever bad an opportunity to amend bis pleadings. It is needless to say that we must determine tbe case upon tbe record presented here, but we must add that, if tbe facts are as represented, tbe attorney for tbe respondent is responsible for their omission from tbe transcript. Tbe statement, upon motion for a new trial, which purports to contain a complete record of tbe case, was settled and agreed upon by tbe attorneys of tbe parties as correct, and tbe court was not called upon to settle sucb statement, and did not, because the attorneys of the respective parties agreed as to what it should contain.

Judgment reversed and cause remanded.

Judgment reversed.

Blare, J., concurred.