Garrison v. Goodale

Citations

• 23 Or. 307
• 31 P. 709
• 1892 Ore. LEXIS 143

Syllabus

<p>1. Amendment of Pleadings — Code, 101 — Discretion of Trial Court.— An application to amend a pleading is always addressed to the discretion of the trial court, and will not be reviewed on appeal except for an abuse of such discretion. Henderson v. Morris, 5 Or. 27; Hexter v. Schneider, 14 Or. 187; Mitchell v. Campbell, 14 Or. 457; and Wallace v. Baisley, 22 Or. 574, approved.</p> <p>2. Idem — Practice and Pleading.— The practice in allowing amendments to the pleadings should be liberal, especially in favor of the defendant, who, by the refusal of an amendment, may forever lose his defense. Swift v. Mulkey, 14 Or. 63; and Baldoch v. Atwood, 21 Or. 79, approved; but the application to amend should be supported by affidavit, showing some reasonable excuse for the delay. In the absence of a supporting affidavit, the presumption that the action of the lower court was correct will prevail.</p> <p>3. Res Gest.® — Contemporaneous Declarations — Evidence. — A statement by defendant that he intended to pay a certain mortgage held by plaintiff against a third person, made a few hours before it is claimed he agreed with plaintiff to pay this mortgage, is admissible as part of the res gestae for the purpose of illustrating the subsequent agreement, and as a circumstance to be considered by the jury in corroboration of plaintiff’s claim.</p>