Amendment of the complaint during trial, to conform to the proof offered, is a privilege long secured by statute (§ 5666), but it is coupled with the right of the defendant to have a reasonable time to file an amended answer. In the present case the plaintiff brought an action to foreclose a mechanic's lien, claiming that he furnished materials and rendered services in the construction of a building pursuant to a contract with the owner. After the action was returned to court the complaint was amended to show that the mechanic's lien had been dissolved upon the substitution of a bond, and to claim only damages. The surety on the bond was not made a party. An answer was filed in which several defenses were based in part upon the allegation that the plaintiff's contract was with the principal contractor and not with the owner. This allegation the plaintiff admitted in his reply, and during the trial he asked for leave to amend to make his complaint conform thereto. The trial court allowed the amendment, against objection, and denied the defendants' request for time to prepare and file a demurrer; but gave them time to redraft their answer. The defendants then presented an answer which admitted the plaintiff's new allegation, but did not in substance change the issues previously raised, and the court permitted the answer to be filed after there were struck from it statements to the effect that the defendants were compelled to answer and did not admit the sufficiency of the complaint. The court submitted the case to the jury, construing it, as did the parties, as an action on a bond substituted for a mechanic's lien, and the jury returned a verdict for the plaintiff, which the court declined to set aside. Held that there was nothing erroneous in any of the actions of the court. The refusal to permit the filing of a demurrer to an amended complaint by defendants who had waived their right to demur to the original complaint by filing an answer, where their subsequent conduct shows plainly that a demurrer would not have promoted the determination of the controversy, is within the discretion of the trial court under its power, given by § 5666 of the General Statutes, to restrain alteration of the pleadings so far as may be necessary to compel the parties to proceed with the trial in a reasonable time. While facts proved but not averred cannot be made the basis of a recovery, yet facts alleged in any part of the pleadings and proved will always make a basis for a verdict and judgment for one party or the other; and proof of a fact material to one party's case may be extracted from the other's evidence.
BURPEE, J.
With the pleadings as they were first drafted, the trial began and proceeded until the plaintiff had proved that his contract had not been made with the defendant Mary Friedman, but with Flauman, the original contractor. Then he asked leave to amend his complaint to conform to this fact. Such an amendment was a privilege secured by statute since 1821 ( Trustees, etc. v. Christ Church, 68 Conn. 369, 372, 36 A. 797), and now recognized in § 5666 of the General Statutes. But it is coupled with the right of the defendant to have a reasonable time to file an amended answer. In this case the defendants were allowed the time they asked for, and all that their new answer indicates that they needed.
At the same time they asked for time to file a demurrer. They did not state their reasons, and we find none in the amended complaint which did not appear in the first complaint, to which the defendants had before had the opportunity to demur and had waived their right by filing an answer. If the complaint was insufficient to support the cause of action, its deficiencies were supplied by the answer. If the facts proved by the plaintiff on the trial under the allegations of the complaint should not make a basis of recovery, the defendants could, after the plaintiff had rested his case, ask for a nonsuit or a directed verdict in their favor. If they should prefer to finish the trial upon the issues framed by the complaint and by their answer, as their original answer indicated that they intended to do, sufficient facts were set out in these pleadings to constitute a good cause of action under the statutes regulating the subject in question; and the result would be determined by the preponderance of the evidence. In the circumstances, it was within the discretion of the trial court to restrain alteration of the pleadings so far as might be necessary to compel the parties to proceed with the trial in a reasonable time. General Statutes, § 5666. It refused, in this condition of the proceedings, to continue the case for an unnecessary purpose. It is true that "facts proved but not averred cannot be made the basis of a recovery." Stein v. Coleman, 73 Conn. 524, 529, 48 A. 206; Longstean v. McCaffrey's Sons, 95 Conn. 486, 111 A. 788. But facts alleged in any part of the pleadings and proved will always make a basis for a verdict and judgment for one party or the other. The form and substance of the amended answer then filed, and the conduct of the defense thereafter, demonstrated plainly that a demurrer would not have promoted the determination of the controversy. This ruling was well within the discretion of the court.
The court properly refused to accept the new answer while it began with the objectionable paragraph with which it was first introduced, and which was not in fact a part of the answer. Nor was it error to compel the defendants to go on with the trial after this answer had been filed. They asked for no delay or continuance, and it appears clearly in the record that they needed none.
It is evident that the peculiarly framed pleadings in this action were construed by the trial court and by the counsel as an action against the principal and surety on a bond substituted for a mechanic's lien. It is true that the plaintiff made an amendment to his complaint, alleging the dissolution of the lien and the approval of the bond in lieu thereof, and dropped his claim for foreclosure and all of the defendants described in the original complaint except Mary Friedman and Max Kowner. The latter is the owner of the land to which the lien attached, and for that reason only had an interest in the action when it was commenced; but he had no interest in an action on the bond. On the other hand, Harry Spievack, the surety on the bond, had an interest in any action on the bond; but he was not joined as a party defendant, nor is he named in the judgment from which this appeal is taken. Under their construction of the action, however, the case was tried and the defendants' requests to charge and the charge itself were shaped. Perhaps, therefore, it is enough for the purpose of this appeal to concede that the pleadings and the evidence presented certain questions of fact for the jury to decide and that upon their verdict a judgment might be rendered. Some of those questions are the subjects of the defendants' requests to charge and are stated sufficiently in the charge. Others are expressed fully and correctly in the parts of the charge assigned as erroneous in the reasons of appeal. Considered in the light of the court's conception of the nature of this action, in which the counsel for both parties agreed, we think the charge contained ample and accurate instructions concerning the issues of facts made by the pleadings, the burden of proof, and the principles of law and the provisions of the statutes by which the jury must be controlled in deciding upon a verdict.
Without access to the defendants' evidence, it is not possible for us to say that the admission of the testimony of the witness Reilly was erroneous. It was admitted for a proper purpose, and the record does not show that it was unfairly prejudicial to the defendants in any respect.
At the opening of the court on the first day of this term, the defendants filed a motion to correct the finding of the trial court. They object to a statement made therein that the plaintiff introduced certain evidence "as a part of his original case," and they submit a certified transcript of the official stenographer's notes of all the plaintiff's evidence in presenting his case and certain depositions to support their objection. But it appears that the trial court did not find that the plaintiff introduced this evidence objected to "as a part of his original case." The finding is that at some time during the trial the plaintiff "offered evidence to prove and claimed to have proved" certain facts, and among them the one to which the defendants refer. It is possible that the evidence to prove that fact was extracted from the defendants' evidence. It was a material fact in the plaintiff's case, and the court instructed the jury that the burden was on him to prove it. It does not matter from what parts of the evidence the jury accumulated enough to make a preponderance on the plaintiff's side. The motion to correct is denied.
We are not called upon to decide what effect, if any, may result from irregularities or omissions in the proceedings, or in the judgment-file in this action, which are not specified in the reasons of appeal.