#### Charles E. Stratton v. William H. Wood et al.

Filed June 22, 1895.

No. 5889.

Pleading: Amendment During Trial. The giving of leave to make an amendment of a petition in the course of a trial, when such amendment does not substantially change the nat ire of the plaintiff’s claim, is within the discretion of the district judge.

Error from the district court of Douglas county. Tried below before Davis, J.

*C. A. Baldwin,*for plaintiff in error.

*Slabaugh & Rush, contra:*

Ryan, C.

The plaintiff in error, with Stephen Milholm, were charged in a petition filed in the office of the clerk of the district court of Douglas county with having by a fraudulent conspiracy obtained from the defendants in error a *630stock of groceries of the value of $275 without consideration. The manner in which it was charged that the wrong complained of was accomplished was this: Milholm agreed to purchase said groceries for $250 in cash, but, as he was unable to pay this amount at once, it was agreed between him and the defendants in error that certain notes secured by mortgages should be given the defendants in error as security until the morning following the day on which the agreement to sell was entered into; that Stratton agreed to pay said sum of $250 on said next day, if the defendants in error would deliver the goods already agreed to be purchased by Milholm, and by the means described it was charged that Stratton and Milholm were endeavoring to cheat and defraud the defendants in error of their stock of groceries and the pay therefor. It was further alleged that immediately thereupon the plaintiff in error took said groceries and removed them beyond the control and knowledge of the defendants in error; that plaintiff in error wholly refused to comply with their agreements; that in obtaining said groceries Milholm was but the tool of Stratton ; that the notes and mortgages which Stratton promised to cash were worthless; that the defendants in error, believing the promises and representations of Milholm and Stratton to be true, transferred the aforesaid groceries as above described.

There is complaint made because during the trial the above petition was amended by the insertion of (his language: “That said Stratton did not at the time he so agreed and represented so to do intend to carry out or fulfil said representations and agreements that he would buy said notes and mortgages and pay said amount for them as aforesaid, and said Milholm knew of said agreement and knew that said Stratton did not intend to do as he agreed.” The plaintiff in error characterizes as unheard of, the submission of the case to a jury before this amendment had been made and two days before the answer to the amended peti*631tion was in fact filed. The amendment was made, as had been indicated that it would be made, before the submission of the cause. An answer was permitted to be filed *instanter,*but the actual filing was delayed two days. For this last circumstance the defendants in error were not responsible. The right to allow amendments which do not materially change the original claim of plaintiff is expressly recognized in the provisions of section 144 of the Code of Civil Procedure. There was no abuse of this discretion, as will readily be seen upon consideration of the averments originally made in connection with the above quoted amendment. .There was a judgment by default against Milholm for the amount of damages claimed, and upon a trial to a jury of the issues presented by the amended petition and the answer thereto, there was judgment for a like amount on a verdict returned against Stratton. By the latter a petition in error has been filed, with a transcript of the record and the original bill of exceptions, in this court. It is not necessary to set out the evidence offered on either side. It is sufficient for every purpose to state that there was ample proof to justify the jury in finding every allegation of the amended petition was true. The conclusions of the jury upon the disputed questions of fact were approved by the refusal of the district court to grant a new trial. No proposition other than those already considered was argued by the plaintiff in error, and the judgment of the district court is

*Affirmed.*