87 Wash. 570 | Wash. | 1915
This is an action by Adolph Erickson, as guardian of Charles Johnson, an insane person, to recover
On December 30, the appellant served on Erickson an unverified answer, which denied the insanity of Johnson and the adjudication thereof, admitted the execution of the contract and the payments, and that “said contract was thereafter rescinded and annulled.” Before the case came on for hearing, the appellant served and filed an amended answer, properly verified, which admitted the execution of the contract, denied the insanity of Johnson when the contract was executed, denied the adjudication of his insanity and appointment of Erickson as guardian, admitted the payment, and denied each and every other allegation of the complaint. With the pleadings in this condition, the cause came on for trial.
The principal ground urged for a reversal of the judgment is an abuse of discretion by the trial court in not allowing the amendments. The matter of amendments rests largely in the discretion, of the trial court, and we are loath to interfere with the rulings made, and will never interfere with the discretion of the court in such matters unless it plainly appears that substantial injustice has been done by the abuse of discretion. It seems to us, however, that in this case substantial injustice has been doné to the appellant. If the contract was rescinded by the appellant, the respondent would be entitled to a recovery of the purchase price, as a rescission includes the idea of restoration of both parties to their status quo and the return by each to the other of the consideration given and received. Reiger v. Turley, 151 Iowa 491, 131 N. W. 866. If, however, the contract was forfeited, as asserted by the appellant, then under its terms he was entitled to retain the payments. The only defense which the appellant could plead to the allegation that he had rescinded the contract was a denial of the rescission, and an affirmative allegation that it had been forfeited instead.
It seems to us that the trial court erred in finding that appellant had rescinded the contract. An examination of the record discloses that he based his finding on the fact that a rescission had been alleged and not denied by the answers. Although the original answer did admit that the contract had been rescinded, the amended answer, on which the parties went to trial, denied each and every other allegation of the complaint not otherwise denied or admitted. The allegation of rescission, not having been expressly admitted in the amended answer, was thus denied. The decree in the suit to quiet title, which the appellant sought to introduce to prove the forfeiture, would not have been competent for that purpose, there having been in that case no adjudication that Johnson had forfeited his contract, and the court rightfully
“From necessity, greater liberality exists in allowing amendments to answers than in amending complaints. Plaintiff may always, in the absence of counter-claim or cross-complaint, dismiss his action and begin anew; and, in any event, the case tried upon the cause of action stated in his complaint and an adverse decision thereon does not prevent him from instituting a new suit on another different and distinct cause of action. But the defendant is not so fortunate. If by mistake he pleads an ineffective or insufficient defense, to say that he may not, by amendment, bring in a good defense, is to inflict a drastic penalty for his inadvertence or mistake; this penalty virtually denies him his day in court; for the judgment for plaintiff, which he is powerless to prevent, will preclude him, not only as to defenses pleaded, but also as to defenses which he might have pleaded but did not. Hence it is that, especially under code practice, the courts are more liberal in permitting the amendment of answers than in allowing the amendment of complaints; and this liberality is sometimes extended to the admission of entirely new defenses.”
The judgment of the trial court is therefore reversed, and the cause remanded for further proceedings consistent with this opinion.