Light v. Farmer

HOOD, Associate Judge.

Draisner, through straw party Light, contracted to buy certain real estate from the Farmers for $20,000, and shortly thereafter agreed to sell the property to Monaco for $21,000. Settlement of these contracts was never made and eventually the Farmers sold the property directly to the Monacos. Action was brought by Drais-ner against the Farmers and Monacos on the ground that by their collusion his contracts were circumvented and he was deprived of his profit of $1,000.

Buchanan, the broker who negotiated the Draisner-Farmer contract, also brought action against both the Farmers and Mona-cos on the ground that their alleged collusion deprived him of his commission of $1,000.

The two actions were tried together before a jury. At the close of the evidence Draisner sought permission to amend his complaint to make a claim against the Farmers alone for breach of contract Apparently a similar amendment by Buchanan had been sought and obtained at an earlier stage of the trial. Draisner’s request for leave to amend was denied. The jury returned verdicts for the defendants and Draisner and Buchanan have appealed.

The first assignment of error.relates to the refusal of the court to allow Draisner to amend his complaint. While the rules of 'the trial court contemplate that leave to amend shall be freely given, it is not their purpose to allow amendments under any and all circumstances. Here the case had been tried on the issues presented by the original complaint, and an amendment advancing a new theory for- recovery after the evidence was closed might have prejudiced defendants. Under these circumstances, there was no abuse of discretion in denying leave to amend.

The other two assignments of error, in substance,, assert that plaintiffs were entitled to directed verdicts in their favor. These assignments cannot he sustained. The record shows factual questions concerning whether Draisner was ever ready, able and willing to settle on his contract, whether he delayed an unreasonable time before offering to settle and thereby breached the contract, whether the Farmers made proper tender of settlement, whether they made reasonable demand on Draisner for settlement, and whether the contract between the Farmers and Monacos was made in good faith or with collusive intent to deprive Draisner of his profit and. Buchanan of his commission. These questions of fact barred directed verdicts and required submission of the cases to the jury.

Affirmed.