July, 28, 1916. The opinion of the Court, reciting the foregoing statement of facts, was delivered by 1. I think the first proposition should be sustained in part only. There was no abuse of discretion. I do not express an opinion as to whether the amendment should or should not have been allowed, but simply that it was not an abuse of discretion to refuse to allow the amendment. The refusal of the motion to amend was based in part on a mistake of the law. The special defenses, proposed to be set up in the amended answer, are not available, under the general denial. The discretion of his Honor was based upon an erroneous proposition of law, and I think this portion of the proposition should be sustained.
2. Plaintiffs' witness was asked the question: "You know that there was a provision in this contract for a penalty for failure to finish work in proper time, did you not?" The presiding Judge excluded the testimony. There was no error here. The contract is in writing and must speak for itself. Besides this, it applied to the excluded special defense.
3. Where the receivers individually bound? The appellant claims that the letters upon which plaintiff seeks to hold the receivers were signed "as receivers." and therefore they incurred no individual responsibility. This position cannot be sustained. The letters were signed "receivers," not "as receivers." The words "agents," "trustee," "receiver," etc., are merely descriptions of the person, and if the liability is to be restricted to the official character, there must be something to indicate that purpose. *Page 41
The fourth proposition is that his Honor erred in not charging certain requests to charge in the words in which the requests were made. The exception conceded that the propositions were covered by the general charge. The exception that raises this question cannot be sustained.
5. "The next point is that the trial Judge erred in refusing to charge as requested in the sixth request, viz., that the contract provided that the final payment should become due after the work is accepted by the architect. Therefore, before the plaintiffs can recover, they must show by the greater weight of the evidence that the architects did accept the work of the plaintiffs at least 60 days before the commencement of this action." Both the contractor and the receiver abandoned the work before it was completed and before the time for the architects to act.
The only error pointed out in this case is the fact that the special Judge based his exercise of discretion upon a mistake of law. The appellant is entitled to have its motion to amend passed upon as a matter of discretion free from mistakes of law.
I think that the case should be remanded to the Circuit Court and the defendants be allowed to renew its motion to amend its answer. If the motion to amend is allowed, there should be a new trial. If the motion to amend is refused, a new trial is unnecessary. The majority of this Court think that permission to answer should not have been granted, and that the judgment should be affirmed.
It is therefore ordered that the judgment be, and the same is hereby, affirmed.