Lichtenstein v. Konig

The plaintiff sued for damages for the failure of the defendant to properly dye a plush coat delivered to her for that purpose. There were three paragraphs in the complaint, and in the first one the value of the coat was placed at $50. This paragraph was not denied by the answer.

Upon the trial, as the plaintiff’s attorney was about to close his case, he called the attention of the court to the fact that the value of the goat was admitted to be $50, whereupon the defendant’s attorney asked leave to amend his answer by denying the value of the coat to be that sum, and consented that the case might be adjourned if the plaintiff claimed surprise by reason of the proposed amendment. The court below refused to allow the amendment, and subsequently, without any testimony on either side as to value, gave judgment for the plaintiff for the sum of $50 and costs. There was testimony to the effect that the coat was about 15 years old, and that the nap was badly worn in places. Under such circumstances the amendment should be allowed, and it was error to refuse.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.