Wright, J.
l. practice: nonsuit: when not allowed, First. As to the right to dismiss. This is conclusively settled by éection 3127 of the Revision, By this, it is declared that an action may be .. . ' ° dismissed ov the plaintm, without prejudice to a future action, before the final submission of «the [217]*217cause to tlie jury, or to the court, when the trial is by the court. And by the next section it is declared that, except in the cases enumerated in section 3127, upon the trial of the action, the decision must be upon the merits. In refusing the plaintiff to take a nonsuit, therefore, the court did not err.
2. amend-discretion. Second. Was there such error in refusing leave to amend as to justify interference? Our statute goes to the utmost verge of liberality in allowing amendments. ±>ut the right is not “ absolute and unconditional; it is to be allowed in furtherance of ■ justice, under a sound judicial discretion.” - We would not sanction a violation of either the letter or spirit of the statute, and yet we must necessarily leave such matters very much to the discretion of.the court below. And to this effect are the cases. In Hatfield v. Gano (15 Iowa, 177), plaintiff asked leave to amend after the cause had been submitted to the jury. This was refused, and it was held on appeal that no such case was presented as would justify the inference that the discretion reposed in the trial court had been abused. See also Brockman v. Berryhill, 16 Iowa, 183, where the rule is well stated, and the sections of the Revision applicable, .cited. Also Dunton v. Thorrington, 15 Iowa, 217; Floyd v. The Mayor, etc., 18 Id. 388; Harvey v. Spaulding, 7 Id. 423; Wilson v. Johnson, 1 G. Greene, 147; Hall v. Doran, 6 Iowa, 433. So that while we think the court" below might, in this case, have allowed .the amendment, and while this course, upon proper terms, would have ac- • corded better with our views, still plaintiff could not claim it as an absolute right, and we could not consistently with rules long and well settled, say that there, was such error as to justify a reversal.
[218]*2183. innkeeper: weejb”ioBsof goods. '4_8tate. inanimate'081 property. [217]*217■Third. And now, finally, did the facts found justify the j udgment ? And here the question is, had the rela[218]*218tion of guest and innkeeper terminated, or rather did it exist at the time of the loss? Upon principle and authority we believe the decision was right. The property lost was goods — dead goods — and the same rule does not obtain as if it had been a horse or the like. For, in the latter case, the host would have had “ benefit by the continuaxice of the horse with him.” In the formex*, he would have “no benefit, and therefore the host should not be charged with loss in the absence of the guest.” 5 Bacon’s Ab. 234, 235.
5 _retarn of guest. Nor would the rule be the same if the guest leaves, intending to, and actually should, return -the same day; or, if it appeared, that though absent, he was liable all the while for his’ board. The case ,is put-upon its own facts. With other cases we have nothing to do at present. The following authorities may be consulted as sustaining the judgment of the court below. Gelley v. Clark, Cro. Jac. 188; 2 Parsons on Con. 153, 154; Grimmell v. Cook, 3 Hill, 485; York v. Greenough, 2 Lord Raym. 866; 5 Barb. 560; 6 Har. & J. 47; 26 Vt. 316; S. C. 28 Id. 387: Ingallsbee v. Wood, 33 N. Y. 577; Thickstun v. Howard, 8 Blackf. 535; Dawson v. Chamney, 5 A. & E. 164; 2 Kent Com. 593; Lane v. Cotton, 12 Mod. 483.
6. —bailee, In ordering the affirmance of the judgment I am ’instructed, in view of the stx*ong and persuasive equities, apparent of record, in plaintiff’s favor, to also order, to avoid all doubt as to the right, that he may, if he shall be so advised, bring his new ‘ action, charging defendant as an ordinary bailee, any thing in the present proceeding to the contrary notwithstanding.
Affirmed.
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