(concurring, but expressing reservations):
I concur in the remand for a new trial and generally with what is said in the main opinion. But I make these comments: A plenary examination into and resolution of the issue as to whether there was lack of consideration for the Butchers’ signature seems to be necessary to a proper and just determination of the controversy. While it may appear from the facts as recited that there was no consideration for the later obtained signatures of the Butchers, it does not appear what the plaintiff Insurance Company did in reliance on the Butchers’ promises either before or after their signature.
Notwithstanding what is said in the opinion about the apparent mandatory character of Rule 15(b) in allowing amendments, any such a motion is addressed to the discretion of the court. But I agree that he should exercise it liberally, in the interests of justice; and only in such circumstances and upon such conditions as will not place the adverse party at an undue disadvantage or result in unfairness or injustice to him. See, e. g., statements in Taylor v. Royle, 1 Utah 2d 175, 264 P.2d 279, and Morris v. Russell, 120 Utah 545, 236 P.2d 451. It should be had in mind that to the same purpose, Rule 54(c)(1), U.R.C.P., provides in part:
Except as to a party against whom a judgment in entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.HENRIOD, C. J., concurs in the views expressed in the opinion of CROCKETT, J.