March 16, 1928. The opinion of the Court was delivered by This is an appeal by the guarantors upon a sales contract from an order of his Honor, Judge Dennis, refusing to allow an amendment to the defendants' answer.
The complaint states a cause of action for goods sold and delivered to the defendant, A.S. Stephens, under a written contract, the faithful performance of which by A.S. Stephens was guaranteed by the defendants, A.T. Stephens and B.L. Altman. The unpaid balance is alleged to be $533.48.
The gist of the proposed amendment is that the plaintiff, in order to get rid of its goods and to saddle the cost upon the guarantors, fraudulently induced the principal to dispose of the goods in any way and by any means possible, either by selling them on credit, without regard to the financial responsibility of the persons to whom he might sell, or by leaving the same with parties who would not buy, the plaintiff being protected by the contract from the obligation to give the purchaser credit therefor.
His Honor, the Circuit Judge, refused the motion to amend upon the ground that the facts proposed to be set up in defense against the liability of the guarantors were not sufficient to constitute a defense. This ruling takes the matter out of the operation of the general rule *Page 130 that in the matter of amendments the discretion of the Circuit Judge will not be interfered with, except in case of the plain abuse of that discretion. It becomes a question of law, and the refusal is appealable.
We think that the facts alleged, if established, would constitute a defense against the liability of the guarantors, and that the amendments should have been allowed.
Order reversed.
MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES BLEASE, STABLER, and CARTER concur.