[No. 35644. Department One. Supreme Court September 23, 1961.]
LEON EARL GUYTON, Respondent, v. TEMPLE MOTORS, INC.,
Appellant.«*»
[1] PLEADING - COMPLAINT - AMENDMENT DURING TRIAL - DISCRETION OF COURT. In an action to rescind a contract, the trial court did not err in allowing the plaintiff to amend his complaint, during the trial, by adding an alternative claim for damages, where the defendant neither claimed surprise nor requested a continuance, since allowance of the amendment was within the court's discretion under Rule of Pleading, Practice and Procedure 15, which provides that leave to amend shall be freely given when justice so requires.
[2] APPEAL AND ERROR - TRIAL - WAIVER OF ERRORS - SUFFICIENCY OF EVIDENCE. In such an action, the defendant's challenge to the sufficiency of the evidence made at the close of the plaintiff's case was waived when it proceeded to present evidence of its defense.
[3] SAME - REVIEW - FINDINGS. When the record contains substantial credible evidence to support the findings of fact of a trial court, they cannot be disturbed on appeal.
Appeal from a judgment of the Superior Court for Pierce County, No. 141658, Bartlett Rummel, J., entered February 29, 1960, upon findings in favor of the plaintiff, in an action to rescind a contract or alternatively for damages. Affirmed.
Scott, Langhorne & McGavick, by Donald H. McGavick, for appellant.
Comfort, Dolack & Hansler (Robert A. Comfort, of counsel), for respondent.
WEAVER, J. -
The defendant, a corporation owning and operating a new and used car business, appeals from a $443.38 judgment.
Plaintiff commenced this action to rescind the contract of purchase of an automobile. His first cause of action is based upon alleged false representation; his second cause of action, in the alternative, is based upon breach of an implied warranty. During trial, the court allowed plaintiff to amend his complaint by adding a third alternative
* Reported in 365 P. (2d) 14.
[1] See Ann. 59 A. L. R. (2d) 186, 253; Am. Jur., Pleading, § 292.
Sept. 1961] GUYTON v. TEMPLE MOTORS, INC. 829
claim for damages in the sum of $700. The first two claims for relief were dismissed. A judgment for money damages was entered on the third claim.
The assignments of error may be classified as follows: First, those directed to procedure; second, those directed to findings of fact; and third, those dependent upon our disposition of the first two categories.
[1] When the court permitted plaintiff to amend his complaint during trial, defendant did not claim surprise and did not request a continuance. Allowance of the amendment was clearly within the trial court's discretion. Rule of Pleading, Practice and Procedure 15, RCW, Vol. 0, embodies our former procedure and provides that leave to amend shall be given freely when justice so requires. Burlingham-Meeker Co. v. Thomas, ante p. 79, 360 P. (2d) 1033 (1961); Criscola v. Guglielmelli, 50 Wn. (2d) 29, 308 P. (2d) 239 (1957); Palin v. General Constr. Co., 47 Wn. (2d) 246, 287 P. (2d) 325 (1955).
[2] Defendant waived its challenge to the sufficiency of the evidence made at the close of plaintiff's case when it proceeded to present evidence of its defense. Fossum v. Timber Structures, Inc., 54 Wn. (2d) 317, 329, 341 P. (2d) 157 (1959).
We paraphrase the questioned findings of fact. The trial court found: that defendant's sales agent represented to plaintiff that the automobile had been driven from the factory to Tacoma, Washington, was the same as a new car, and carried a new-car warranty; that the car had been driven East before being driven to Tacoma; that the representations were false, fraudulent, and untrue; that the automobile was a used car and did not carry a newcar warranty or any warranty whatsoever; that the representations were made with knowledge of their falsity and with intent that they be relied upon by plaintiff, who did rely upon them; that the sales price of the automobile was $3,296.33, and its reasonable value, at the time of sale, was $2,770; that plaintiff was given an over-allowance of $100 on the trade-in value of his old car.
[3] Nothing would be added to the case law of this
830 STATE v. LONG. [58 Wn. (2d)
jurisdiction by detailing the conflict of testimony introduced by the parties. It is sufficient to state that the record contains substantial credible evidence to support the findings of fact of the trial court. We cannot disturb them. Thorndike v. Hesperian Orchards, Inc., 54 Wn. (2d) 570, 343 P. (2d) 183 (1959).
The foregoing disposes of defendant's remaining assignments of error; they are not well taken.
The judgment is affirmed.
FINLEY, C. J., HILL, ROSELLINI, and FOSTER, JJ., concur.