1 Kan. 418 | Kan. | 1863
By the Court,
This action was brought in the district court of Doniphan county, by the defendants in error against the plaintiff in error, upon a promissory note made by said Irwin and one C. B. Campbell in terms payable to the order of B. A. Paulett & Co. .¿.h
Irwin answered, in substance, that, at the time of making1 the note, Campbell was indebted to the plaintiffs belovr in the sum mentioned, as principal in the note, and bo (Irwih) signed the note as security for Campbell, and that Campbelí'^f|l>r-“ ward, on or about the the first of May, 1861, paid to'?said_s plaintiffs one hundred and fifty dollars, and requested them to apply it on said note.
To which answer a reply was filed, saying that the payment mentioned in the answer was applied by said plaintiffs on another note, given by said Campbell to said plantiffs, without any agreement between said plaintiffs and said defendant on which of the notes said payment was to be applied.
The cause coming on for trial on these pleadings, Irwin moved the court to disregard the reply, and allow the one hundred and fifty dollars payment, and give the plaintiffs judgment for the balance ; which motion the court overruled, and Irwin excepted.
The plaintiffs below then asked leave to amend their reply by adding a denial of the facts stated in the answer, which was granted, and Irwin excepted, and such denial was added.
It is claimed by counsel for the plaintiff in error that the judgment should be reversed for defect of the petition in failing to allege that the plaintiffs below constituted the firm of E. Á. Paulett & Go., the pa3recs of the note.
Whether the petition is defective in that particular it is unnecessary for us to consider. The answer, in substance, alleges all the facts which it is claimed the petition lacks, and prays that judgment be rendered for the plaintiffs for the balance of the note, after allowing a payment of one hundred and fifty dollars, claimed to have been paid by Gampbell, co-signer of the note.
In Irwin & Lane vs. Shaffer & Curtis, (3 Law Gaz. 281,) as cited in Seney’s Ohio Qocle, (p. 109, note h,) it was held that “ when a petition is defective, for want of a material averment, and such averment is supplied by the answer, and is not inconsistent with the averment and claims of the petition, the defects of the petition will thereby be cured.” We see no objection to the principle there laid down, but in the case under consideration the answer in praying that judgment lie rendered for the plaintiffs upon the petition, went much further, and most clearly waived any such defect in the petition.
The allegation of Irwin, in his answer, that Campbell, his co-contractor, paid to the plaintiffs one hundred and fifty dollars' and requested that the same be applied on said note, is equivalent to an allegation of payment on the note to that amount. It is well settled that a debtor paying money to a creditor holding several demands against him has the right to
The plaintiffs, by their reply, admitted expressly the payment, by Campbell, of the one hundred and fifty dollars, and by not denying, also admitted the request of Campbell to apply it upon the note in question in the answer. This is a full admission of the payment of one hundred and fifty dollars on the note in suit. That there was no agreement as to the application of the money was an irrelevant fact, and the allegation that it was applied on another note shows only an attempt to misapply the money, when its application in payment of the note in suit was already complete.
The position of the defendant in error that the amount of the payment was not admitted by his failure to reply, is not sustained by section one hundred and thirty-seven of the code. That section provides thatallegations of value, or of amount of damage shall not be considered as true by failure to controvert them.” But an allegation of the amount of a payment, is in no sense an allegation of value or of the amount of damage.
The payment of one hundred and fifty dollars, then, stood admitted upon the record, and, as the pleadings then stood, Irwin was clearly entitled to a corresponding deduction from the plaintiffs’ demand.
But the court then permitted the plaintiffs to add to their reply a general denial of the facts stated in the answer, thereby, at the commencement of the trial, . retracting their admission of payment.
Did the court err in granting such amendment ?
The code of civil procedure, having provided for amendments of pleadings and regulated the practice in regard to them, the authority to make such amendments is derived solely from that act.
Sections one hundred and iorty-one and one hundred and forty-two provide for amendments only in cases of variance between the pleadings and proof. Such amendments are made after trial, and bear no analogy to this ease.
Sections one hundred and forty-four and one hundred and forty-five provide for amendments, of course, before the answer is filed, or within ten days after a demurrer is filed.
Section one hundred and forty-six provides for an answer or reply after a demurrer is overruled.
Section one hundred and forty-nine provides for amendments after a demurrer is sustained.
Section one hundred and fifty-one provides for amendments in the name of the party when he has been sued by a fictitious name.
Clearly none of these sections apply to the case before us, and the only other section providing for amendments is section one hundred and forty-seven, which reads as follows : “ The court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or by inserting other allegations, material to the case, when the amendment does not change substantially the claim or defense.”
This section authorizes the insertion of “ other allegations” only when the amendment does not change, substantially, the claim or defense. The word, “claim,” as used in this section, means the plaintiff’s right of action, appearing by the pleadings. The language, in that connection, is susceptible o'f no other meaning. In the case under consideration, the plaintiff’s claim, as it appeared by the allegations of the petition and the admissions of the reply, before the amendment was a right of action, for the amount of the note, crediting a pay
The amendment, then, most clearly changed, substantially, the plaintiffs’ claim. The motion to amend should have been overruled, and the jury should have been instructed to find for the plaintiff, the amount of the note, crediting a payment of one hundred and fifty dollars, as made on the first of May, 1861.
Decisions have been made, both in New York and Ohio, allowing the court great latitude in granting amendments to pleadings, changing, substantially, the issue to be tried; but an examination of the provisions of the codes of those states, under which such amendments were allowed, will show that they have no application hero.
Section one hundred and thirty-seven of the Ohio code, which is a literal transcript of the one hundred and seventy-third section of the New York code, provides that “the court may, before or after a judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process or proceeding, by adding of striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or when the amendment does not change, substantially, the claim of defense by conforming the pleading or proceeding to the fact proved.”
By this section, the court is authorized, after trial, to amend, “ by conforming the pleading or proceeding to the facts proved,” only “when the amendment does not change, substantially, the claim or defensebut in othey stages of the case, it authorizes the court to insert other allegations, whether the amendment changes the claim or defense, substantially or not, (see Beardsley vs. Stovers, 7 How., 294,). recognizing that distinction; while in our code the restriction: is, by the language of the law, applied to amendments before
The judgment must be reversed, with cost to the plaintiff in error, and the cause remanded to the district court, with instructions to strike out the amendment to the reply, and retry the cause.
