[Download] "St. George v. Boucher" by Supreme Court of Montana ~ eBook PDF Kindle ePub Free
eBook details
- Title: St. George v. Boucher
- Author : Supreme Court of Montana
- Release Date : January 11, 1929
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 64 KB
Description
Contracts ? Landlord and Tenant ? Actions ? Consolidation ? Trial ? Continuances ? Pleadings ? Amendment After Issue Joined ? Discretion ? Appeal ? Variance ? When Complaint Deemed Amended to Conform to Proof. Actions ? Consolidation ? When Improper. 1. An action sounding in tort may not properly be consolidated with one sounding in contract. Same ? Consolidation ? Statute Permissive ? Discretion. 2. Section 9820, Revised Codes 1921, providing for the consolidation of actions is permissive, not mandatory; a consolidation may not be demanded as a matter of right, but rests in the discretion of the court, the exercise of which will not be interfered with on appeal unless clear abuse is shown, particularly where the consolidation was denied; however, where consolidation will expedite the courts business and the interests of litigants be furthered as well as the expense to them and the public minimized, it should be ordered. Pleadings ? Amendments After Issue Joined ? Discretion. 3. Amendments to pleadings after issue joined are addressed to the sound legal discretion of the trial court, and where defendant on the day set for the trial of the cause sought to amend his answer by adding a counterclaim without assigning any reason why it was not made a part of the original pleading, refusal of the motion was not error. Trial ? Continuance ? Discretion. 4. The granting or refusing to grant a continuance is in the sound legal discretion of the court, which will not be reversed in the absence of an affirmative showing disclosing an abuse of discretion. Appeal ? Pleading and Proof ? Variance ? When Pleading Deemed Amended to Conform to Proof. 5. Where on appeal it appears that there is a variance between pleading and proof, but the proof, admitted without objection, sustains the essence of the cause of action and would sustain an allegation which is substantially the equivalent of the one alleged in the complaint, the pleading will be deemed amended to conform to the proof if necessary to sustain the judgment. Same ? Variance ? Pleading Deemed Amended to Conform to Proof ? Case at Bar. 6. Under the last above rule, held in an action by the lessee of a hotel to recover a sum of money alleged to have been orally - Page 159 promised plaintiff if she should build up a good reputation for the house within a certain time, that an allegation in the complaint that the hotel at the time of the promise was a house of ill-fame was substantially supported by proof, admitted without objection, that it then bore a bad reputation, and that therefore the pleading must be deemed amended to conform to the proof. (Mr. Justice GALEN dissenting.) Same ? Variance ? When Immaterial. 7. While a variance which amounts to a failure of proof is subject to a motion for non-suit, one which is immaterial and could not have misled defendant to his prejudice in making his defense upon the merits is immaterial under section 9183, Revised Codes 1921, and insufficient to warrant a reversal of the judgment. Contracts ? Tenants Action Against Landlord for Money Due ? Plaintiff Crediting Defendant for Rent ? Evidence ? Admissibility. 8. Where plaintiff lessee of a hotel seeking to recover from the lessor a certain sum for building up a good reputation for the house under an oral agreement to that effect, in her complaint alleged that a given amount was due the latter for rent which she had paid by crediting the same upon the sum sued for, the correctness of her computation being admitted by defendant in his answer, testimony on her part that she had so credited defendant was properly admitted.