| Wis. | Jun 15, 1870
As, in case the jury believed the defendant’s testimony, as the verdict shows they did, the entire costs of the action depended on the allowance of the amendment so as to enable the defendant to prove the payment of one more dollar than he had alleged, we think it was an abuse of discretion not to allow it upon some terms. With that proof, it appeared that the plaintiff had no ground whatever for the suit, and the defendant, instead of paying, ought to have recovered costs. Without that proof, his tender, upon his own testimony, was one dollar too small. With that proof, the payment and tender covered the whole debt.
Under such circumstances, the justice of the case ought not to be sacrificed by a refusal to allow the necessary amendment, even on the trial. If the question had involved merely the loss or recovery of the additional dollar, it would not have been important enough to say that the refusal of the amendment was an abuse of discretion. But where the sufficiency of a tender depended upon the fact, it assumes such a relation to the merits of the case, that it amounts to a denial of justice to refuse the amendment.
The payment of that dollar, made in the manner offered to be shown, was an item that might naturally have been overlooked in the pleadings, without subjecting the pleader to any such charge of negligence as should preclude an amendment, if negligence should
It is not probable that the plaintiff could have shown that he was taken by surprise, so as to make it necessary to allow him time to get witnesses to rebut this proof. But if he had, that would have been a matter that should have regulated the terms.
By the Court. — The judgment is reversed, and the cause remanded for a new trial.