195 P. 527 | Wyo. | 1921
Plaintiff) Bissinger & Co., a corporation, was engaged in -the hide, pelt and wool business in Salt Lake City, Utah, and defendants, Max Weiss and Morris Weiss, co-partners, were .engaged in a smaller way in a similar business at Rock ¡Springs, Wyoming. Between November 1,1917 and August 1, 1918, the plaintiff advanced to defendants various sums .of money and the defendants delivered to plaintiff many ishipments of merchandise, consisting of hides, pelts, etc.
The answer, as it stood when the trial began, alleged that the deliveries of merchandise by defendants to plaintiff “were made under express contracts and agreements between plaintiff and defendants, as to the prices of the goods so sold and shipped by defendants to plaintiff;” that certain “specific items in said account are erroneous and not correct, and are not priced according to the agreement made between plaintiff and defendants in regard thereto.” The items thus referred to as erroneous are then set forth with a statement of the amounts which the defendants claim they should have been credited therefor upon the account.
At the trial, the first witness for the plaintiff was John McCarty,' its manager. After his direct examination had been concluded, and during his cross examination, the defendants’ attorney ashed leave of the court to amend the answer to conform to plaintiffs-’ proof by alleging that the defendants were entitled to receive credit for the market value of the goods shipped to plaintiff by defendants. Over objection, leave to amend was granted, and later, after trial but before judgment, the amended answer was filed, changing the allegations hereinbefore quoted of the original answer. In lieu of those allegations, the amended answer stated that the deliveries of merchandise “were made under an
It is contended by plaintiff in error that the amendment should not have been permitted for the reason that 'the allegations thereof in regard to the agreement for payment of the market value for the goods delivered to plaintiff were not supported by the evidence. As the plaintiff’s witness, ■McCai’ty, was the only witness who testified upon this subject, it is necessary to determine whether or not the trial court erred in finding that his testimony supported those allegations of the amended answer. This witness repeatedly stated that the prices entered upon the plaintiff’s books for the articles received from the defendants were the market prices, and that such market prices were in every instance fixed when the goods were received by plaintiff by agreement between him, acting for the plaintiff, and one or the other of the defendants. This testimony standing alone would have shown an express contract as to each credit op the account, and perhaps have rendered immaterial any inquiry as to the true market value of the goods. But other testimony of the same witness tended to eontradiet him in that regard and to prove that the prices entered upon the books were fixed by him, acting for the plaintiff, without the approval of either of the defendants. He insisted that, at the beginning, of the dealings, there was no arrangement at all in regard to prices to be allowed for the goods in question, but later said that the defendants were “supposed to get the'market price, ” and that “it was the policy of Bissin-ber & Co.' always to pay the market prices.” On cross-examination, after many questions in regard to how and for
It is contended that there was error in permitting the amendment of the answer, for the further reason that it worked a change in the defense, and a surprise to the plaintiff. The amendment was allowed under the statute which is now Section 5707, Wyo. Comp. Stat. 1920, and as we have said in the foregoing discussion, to conform to the plaintiff’s proof. Such amendments should be liberally allowed, when justice will be promoted thereby. (Lellman v. Mills, 15 Wyo. 149, 87 Pac. 985.) The matter of their allowance rests within the sound discretion of the trial court, and the discretion is not interfered with, unless some prejudice appears. (Clark v. Clark, 20 O. St. 128; Root v. Railroad Co., 45 O. St. 222; School District v. Dudley, 28 Kans. 160; Taylor v. Star Coal Co., 110 Ia. 40, 81 N. W. 249.) Courts are more liberal in allowing amendments to answers than to petitions. (Thorn v. Smith, 71 Wis. 18, 36 N. W. 707; Garrison v. Goodale, 23 Ore. 307, 31 Pac. 709; Bliss on Code Pleading, § 430.) Where a party to a suit asks leave to amend to conform his pleading to facts proved by himself without objection, or to facts proved by his opponent, the right to amend is usually conceded. (Scroggin v. Johnston, 45 Nebr. 714, 64 Pac. 236; Bonebrake v. City of Columbus, 6 Ohio N. P. (N. S.) 41; Supreme Commandery v. Everding, 110 Cir. Dec. 419.) The original answer averred that the defendant was entitled to larger credits by virtue of express contracts fixing the prices of certain articles, and after the plaintiff had proved that the defendants were entitled to credits equal to the market values of said articles, the defendants, we think, were making no substantial change in their defense by accepting that situation, and amending' their answer to conform thereto.
While the plaintiff objected to the amendment for the reason that it was a' surprise,' we do not find anything in the record upon- which to ground such an objection. Plaintiff did not ask any postponement or continuance in order
Plaintiff in error further contends that the trial court did not give proper consideration to the book account kept by plaintiff, and also that the weight of the evidence on the question of the market value of the goods received by plaintiff was in its favor. It is not proper for us to go further into a consideration of these contentions than to say that we believe there was substantial evidence sufficient to support the judgment, including the finding that the market value of said goods was greater than the amount credited on'plaintiff’s books, and that the difference was sufficient to reduce plaintiff’s claim to the amount for which it was given judgment. Such being the case, we cannot weigh the evidence.' (Ketchum v. Davis, 3 Wyo. 164, 13 Pac. 15; Hart v. City of Laramie, 26 Wyo. 160, 181 Pac. 137.)
It is contended that, under the pleadings, the burden of proof was upon the defendants to show that they were entitled to greater credits than had been allowed by plaintiff, and that defendants should have been required on the trial to assume that burden by opening the case. The plaintiff voluntarily opened the case without any objection or question as to the order of proof; no complaint upon this point was made in the 'motion for a new trial, and, therefore, nothing is presented for our consideration.
The case was tried in Sweetwater County, in the third judicial district, where it was commenced. The judge of the second judicial district presided at the trial, and, after hearing the evidence, took the ease under advisement. Later, when he decided the case, he reduced to writing and signed, at Laramie, in the second judicial district, a paper, entitled
“When any cause, action or matter has been heard by the court or judge, the decision may be made out of term, and such decision may be made by order, or by direction that an order, judgment or decree be entered; and upon the filing in the office of the clerk of the district court, of the county wherein-the action or proceeding is pending, the decision in writing signed by the judge, whether it be an order, a judgment or decree, as the case may require, shall be entered by such clerk in conformity with such decision. ”
In Anderson v. Matthews, 8 Wyo. 307; 57 Pac. 156, where the court had under consideration the appointment of a receiver by an order made in a county of the district other than that in which the suit was pending, it was held that the order thus made, under the authority of Section 5731, was an act of the court quite as much as if performed during a session of a regular term. For the purposes mentioned in the statute, the court is open at all times. (Jones v. Bowman, 10 Wyo. 47, 65 Pac. 1002.) In determining the authority of the judge when acting upon matters mentioned in this section, no distinction should be made between the rendition of a judgment and the making of an order. The judgment in this case is clearly one of those authorized by the statute. The paper signed by the judge when he made his decision, was the direction to the clerk to enter the judg
We find no error, and the judgment is affirmed.
Affirmed.