The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-11-28

erection of dwenshouse In the declaration the plaintiffs
named Sung Lo Pau and Pong Chong doing bus
mess as "Yee Sing Tai Company Attached the declaration
and referred to therein copy of the
copy the parties second part builders described
Sing At the trial the plaintiffs offered in evidence
the original contract but objection by defendants counsel
the court refused admit the the ground that there
was variance between allegation in the and
the proof as to the of the partnership The also
declined ground of immateraly since the
in evidence allow the following questions 'Wl you
please state whether Ium Sung LO Pau and Pong Chong
the parties whose behalf this contract signed under the
of Yee Sing Tail and "You have brought suit here
Sung and Pong Chong have brought suit in this
case under the name zee Sing Tai Company VIII you
state whether Sing Tai Company the Sing Tai
named in that contract the of which signed that
contract!"
After the refusal receive the contract evidence, counsel
for the plaintiff asked amend the declaration by strk
ing the word Company that the of the plaintiff
would be, "Lum Sung Lo Pau and Pong
Chong doing Yee Sing Tai To this counsel for
the defendant objected the ground that the amendment
change in the parties the action The
daowed amendment the ground thus stated in
the objection of rulings duly excepted and
the this these and other exceptions
Whether or not there material between the
and the proofs in the of the partnership need
be decided Assuming that there such variance
are opinion the below erred in dalowng the
amendment The of the word Company in the title OF
the partnership in the declaration clearly mistake,
though stated in argument by counsel for the
plaintiff the presiding Judge Section 1860 of the Civil
Laws provides as follows whenever plaintiff in any action
shall have mistaken of action suited his claim the
court on motion shall permit amendments be made such
terms as it shall adiudg reasonable and the may in
furherance Of Justice and the like TERMS allow petition
other pleading be amended in matter of mere FORM
adding striking the of any party by
recting mistake in the of party, mistake in any
respect This of the amendments which the trial
court was by specifically authorized allow tow
a correction in the of party. it change
substitution of parties power being thus conferred it
the duty in proper Wood a.
city of Phadepha 81 Pa St, 5O2 sos See, also Porter
a. HHdtrbrand IA Pa ST. 129 1884, and Ferry u Pfefr, IS
Wis 535 may be that the matter of the allowance OF
amendments is largely within discretion of the trial court
Even under this rule however, where there abuse of dis
cretion the appellate may In this we think
there was abuse discretion The fuherance of justice
required beyond question the allowance of the amendments
possible prejudice could result hereom to the defendant
1t is contende in this the amendment could not
properly have been made by striking the word Company
from the declaration That such amendment be thus
made Martin Kerr Iaw. $50. Moreover this not
the objection urged in the below the allowance of the
amendment The only ground then stated forth
above, that the amendment would constitute change the
parties the No objection made the form of
objection to cannot be urged in this
The error material and preiudcal The exception is
sustained and a trial ordered.
j. A. Hdgoon and T. I. Dillon for plaintiffs.
f. W Hdnkey for defendant