Camp v. Waring

Storrs, C. J. We are of opinion that it was competent for the superior court, in its discretion, at any time before the passing of a decree in this case, to allow any proper amendments to the petition to be made by the plaintiff; and such amendments are not, therefore, precluded by the return of the report of the committee ; and also that the amend» [528] ments proposed to be made are not, in their character, such as are not allowable by the court. Whenever such amendments are allowed, it is discretionary with the court, under all the circumstances of the case, to permit them to be made with or without costs. Ordinarily, if new facts are introduced into the petition, by way of amendment, which would not properly be the subject of proof under it as originally drawn, and which were not inquired into on the hearing of the facts upon it, whether by the court or a committee, the court should give to all the parties an opportunity to be heard in regard to such new facts, either before itself, or the same or another committee. But if, although such new facts would not strictly be a legitimate subject of inquiry on the original petition, yet if on the hearing upon it, the parties voluntarily permitted and went into a full inquiry in regard to them, and they are embraced by the report of the committee, it would not be incumbent on the court to allow any further inquiry into them. It would, however, be competent and proper to do so, if the court entertained any doubt whether the parties had already had a full hearing in regard to them. It is plain, and indeed it is not disputed, that in this case, on the petition as it was originally framed, the plaintiff would not be entitled to any relief, for the reason that it is found by the committee, that there was no such contract between the parties as that set up in the petition. It is found that there was no such stipulation as is therein alleged, in regard to the time for which the debt due Mrs. Smith was to be suffered to remain unpaid; but it would appear that the parties, by mutual consent, went into a full inquiry, before the committee, in regard to the contract actually made between them. The manner in which the report presents the facts, is hardly consistent with any other supposition, and it is not claimed that such was not the case, or that there is any new or further evidence on the subject. The object of the plaintiff now in amending his petition as he proposes, appears to be only to conform his petition to the finding of the committee in regard to the real terms of said [529] contract. He claims that, according to that finding, it was one of its terms that the debt due to Mrs. Smith should be permitted to remain unpaid for a number of years at least, from the time of the purchase, unless it was sooner enforced by Mrs. Smith. It is unnecessary to consider whether such a stipulation would be void for indefiniteness or uncertainty, or whether such a time had not elapsed before the plaintiff brought his suit against the defendant, that the former had a right to require its performance. Whatever might be thought of its validity or effect, on a just construction of the report of the committee, we think that it is not found, as it should have been, affirmatively, if the fact was so, that it formed one of the terms of the agreement between the parties. Without taking time to comment at large on the language of the report, we think that, taking it all together, its fair import is, not that the parties intended to incorporate into their contract any positive or definite stipulation, by which either of them should be absolutely bound, as to the time for which payment by the plaintiff of the debt due to Mrs. Smith should or might be deferred, but only that what passed, in the negotiation which preceded and led to the. contract, produced a mere expectation or belief that the debt would be suffered to lie for a number of years at least, unless enforced by Mrs. Smith. This construction or inference seems to be irresistible when we look at the precise terms on which it is stated that the parties “ agreed” in regard to the payment of that debt, in connection with the subsequent explicit finding, as to certain points in regard to the delay of its payment, that there was no agreement between them, and the significant manner in which it is subjoined what the “ understanding” was, in regard to that debt being permitted to lie. The context here shows that the word “ understanding,” always a loose and ambiguous one, unless accompanied with some expression to show that it constituted a meeting of the minds of parties upon something respecting which they intended to be bound, was used, not to express anything which was the subject of an agreement or contract between the parties, but only that kind of expectation or [530] confidence upon which parties are frequently willing to rely without requiring any binding stipulation. This construction is strongly confirmed by the fact that in the contract drawn by the attorney of the parties, and executed by them, and which preceded and was the basis of the subsequent mortgage to the defendant, no time is specified within which the debt of Mrs. Smith should be paid, and there is no claim that that contract was, in any respect, inaccurately expressed. If we have correctly apprehended the questions on which our advice is sought, we are of opinion that inasmuch as the amendment proposed by the plaintiff would not be of any avail to him, it should not be allowed but that the bill should be dismissed. In this opinion the other judges, Hinman and Ellsworth, concurred. Advice that bill be dismissed.