In reviewing whether or not the trial court abused its discretion under GCR 1963, 118.3, the main issue is, did the amendment of the complaint allow the party to introduce a new cause of action to the prejudice of the defendant? Bishop Electric, Inc v Simpson, 7 Mich. App. 391, 399; 151 N.W.2d 900 (1967) lv den 379 Mich. 789 (1967). GCR 1963, 118.3 reads in relevant part:
Thus, the scope, substance, and identity of the triable legal issue remained the same and there was no abuse of discretion. Bishop Electric, Inc v Simpson, 7 Mich. App. 391, 398-400; 151 N.W.2d 900, 903-904 (1967), lv den 379 Mich. 789 (1967). Furthermore, the designation for the transfer of possession of the dump trailer between plaintiff S.D. Solomon Sons and defendant as a lease was first advanced by defendant in its cross-complaint, appended to its answer to the first amended complaint.
In the instant case, the plaintiff below was trying to prove abandonment or modification of the written agreement. The party claiming such a change has the burden of proving it. Bishop Electric, Inc., v. Simpson (1967), 7 Mich. App. 391. Generally, evidence of changes in the contract, and their costs, is by necessity admissible to show the modification or abandonment of the contract.
47 charged for painting eight and one-half windows not contemplated in the contract was orally authorized by O'Brien, there is no evidence that Alco ever agreed to this item. Since the burden of proof was on the third-party plaintiff to establish oral agreements with Alco, this item should not have been allowed as against Alco. Banwell v. Risdon (1932), 258 Mich. 274, 278; Bishop Electric, Inc., v. Simpson (1967), 7 Mich. App. 391. Secondly, Bradley and O'Brien testified that although there was no charge included in the contract for painting common areas, it was contemplated that $10 of the $210 per unit price would be allocated for these items.
Such a modification may be effected either orally or through a writing. However, the burden of proving the modification rests upon the party alleging it. Bishop Electric, Inc. v. Simpson (1967), 7 Mich. App. 391. Hence, the parol evidence rule does not preclude plaintiff from proving a modification so long as it was subsequent to May 7, 1959, the date on which the original agreement was signed.
It is further argued by the plaintiff that even if the written purchase order dated April 29, 1965, was a binding contract, the parties could and actually did change it. Such cases as Bishop Electric, Inc., v. Simpson (1967), 7 Mich. App. 391, and Green v. Millman Brothers, Inc. (1967), 7 Mich. App. 450, are cited in support of this position. While we do not question the principle set forth, these cases are not applicable to the facts in the case at bar.