Bennett v. Tillmon , 18 Mont. 28 ( 1896 )

Per Curiam.

The plaintiff contends that the answer contains no defense, in that it attempts to vary a written contract by the oral agreement to allow the account pleaded to be offset against and credited upon the notes. This Avas the ground for plaintiff’s motion for judgment on the pleadings, and of his objection to the introduction of any testimony in relation to said agreement.

We do not think the oral agreement, set up in the answer, that G. A. Bennett’s account or indebtedness to defendant was to be offset against or credited on the notes, is an attempt to vary the terms of the written contract as contended. The agreement contained in the answer as to the G. A. Bennett indebtedness or account amounted, in effect, to this : That the defendant, by executing the notes, did not waive the right to set up his accounts against G. A. Bennett against the notes. This in no Avay altered, changed, or varied the terms of the notes. It was only a reservation of the right by defendant to pay them by setting up G. A. Bennett’s indebtedness to him as a counterclaim.

In Bohn Manufacturing Co. v. Harrison, 13 Mont. 293, this court held that “parol evidence of an agreement that the acceptance of a bill of„ exchange should not be a waiver of counterclaims which the acceptor then held against the drawer is admissible in an action on the bill, as such evidence contradicts, not the instrument, but merely the presumption of waiver which arises from the fact of its acceptance.” We think this case is directly in point, and decisive of the case at bar.

The appellant assigns as error the action of the court in allowing defendant to amend his answer during the trial. The allowing of an amendment at any stage of the case is a matter largely within the discretion of the court. It does not appear that, by reason of the amendment, a postponement or continuance of the case was rendered necessary, or that appellant made any request therefor. It is not shown how the appellant was injured, or in what respect the court abused its discretion by allowing the amendment.

We think no errors have been shown which would authorize a reversal of the case. The judgment and order appealed from are affirmed.

Affirmed.