CHARLESTON.

#### James I. Pancake *et al. v.*John Y. Hite *et al.,*Partners, *Etc.,*as Hite Lumber Company

(No. 6061)

Submitted March 13, 1928.

Decided March 20, 1928.

*Continuance*— Pleading—Declaration *May be Amended at Trial to Make it Correspond to Proof; Amendment of Declaration at Trial to Make it Correspond to Proof Does Not Require Continuance, Except on Showing of Necessity to Enable defendant to make' defense; in Assumpsit on Contract, Permitting Amendment at Trial of Declaration Setting Out Contract in Haec Verba Held Not to Require Continuance (Code, c. 181*§ *8).*

A declaration, may be amended at the trial of the action, to make the allegation correspond to the proof' offered, if sub*367stantial justice will be thereby promoted, and such amendment does not entitle the defendant to a continuance, unless ha shows to the satisfaction of the court that a continuance is necessary to enable him to make his defense. *Adams*v. *Adams,*79 W. Va. 546.

(Continuances, 13 C. J. § 102; Pleading, 31 Cyc. p. 448.)

(Note : Parenthetical references by Editors, C. J. — Cyc. Not part of syllabi.)

HatcheR, Judge, absent.

Error to Circuit Court, Hampshire County.

Assumpsit by James I. Pancake and others against John T. Hite and others, partners, as .the Hite Lumber Company. Judgment for plaintiff, and defendants bring error.

*Affirmed.*

*Robert White*and *W. H. Conaway,*for plaintiffs in error.

*McCauley, Zimmerman & McCauley,*for defendant in error.

Lively, Judge:

This is an action of assumpsit by J ames I. Pancake, et al., against John Y. Hite and E. B. Cribble, partners trading as the John Y. Hite Lumber Company, to recover the sale price of certain chestnut timber that would make telephone and telegraph poles, on the plaintiff’s land in Hardy County, West Virginia. This writ was awarded to a judgment entered on a $2,400.00 verdict in plaintiffs’ favor.

The plaintiffs in error have filed no brief and have made no appearance in this Court. In taking up the assignments of error in the petition for this writ we cannot pass upon those assignments depending upon the evidence and the instructions based thereon, because there was no bill of exceptions making the evidence a part of the record. *McKenzie*v. *McKall,*85 W. Va. 31; *Coal Co.*v. *Cecil,*94 W. Va. 121; *Guyandotte Coal Company*v. *Electric and Machinery Works,*94 W. Va. 300; *Moorefield*v. *Lewis,*96 W. Va. 112. The assignments of error which we can consider are those relating to the pleadings, and to the motion for a continuance made upon the allowance of an amendment to the plaintiffs’ declaration during the course of the trial.

*368The first ground of alleged error is the court’s refusal to sustain the motion to quash the summons and return. This motion was general in its nature, no specific reasons being assigned therein. Moreover, it is well settled by our decisions that in actions at law, except in judgments by default, the writ is not a part of the record. *Lambert*v. *Ensign Mfg. Co.,*42 W. Va. 813; *Netter-Oppenheimer & Co.*v. *Elfant,*63 W. Va. 99; *State*v. *Jarrell,*76 W. Va. 263. It would have been proper to have craved oyer of the writ and thus made it a part of the record. *Netter-Oppenheimer & Co.*v. *Elfant, supra.*This the defendants failed to do. The writ not being a part of the record, this assignment fails.

It is further contended that the court erred in overruling the demurrer to the plaintiffs’ declaration and to each count thereof. No specific grounds of demurrer were pointed out. We are not disposed to dwell at length upon this assignment. The first count in the declaration based a recovery upon the common counts; the second was a special count in assumpsit. The latter sufficiently averred the defendants’ promise and a legal consideration therefor, the readiness of the plaintiffs to perform their part of the contract, the demand upon defendants and the breach of their obligation, with resultant damages. *Stopper Co.*v. *McGara,*66 W. Va. 403; Burks on Pleadings and Practice, sec. 88. The defendants were fully informed of the case they were called upon to meet, and their demurrer to the declaration and each count thereof was properly overruled.

The third and most important question presented upon this writ is that raised by the defendants’ third and fourth assignments of error, namely, that the court erred in permitting the plaintiffs to amend their declaration during the trial of the case and in refusing to grant the defendants a continuance upon the allowance of the amendment. The contract offered in evidence upon the trial was as follows:

> “ROMNEY, WEST VIRGINIA,

> October 7, 1922.

> We, the John Y. Hite Lumber Company this day bought of Joe S. and James I. Pancake all the chestnut that will *369make telephone and telegraph, poles that are on the tract of land owned by the said Pancakes on Saw Mall Mountain,

> Hardy County, West Virginia, for the sum of Twenty Pour Hundred ($2400.00)

> Dollars, to be paid in three or four days from the above date.

> It is understood that they are to have two years from the above date to remove the chestnut poles.

> Joe S. Pancake

> James I. Pancake

> John Y. Hite Lumber Company.”

The contract as set out *in haeo verla*in the original declaration failed to include in the first and second lines, the words “Romney, West Virginia, October 7, 1922,” and in the sixth line, ‘ ‘ and telegraph. ’ ’ When the variance between the pleading and proof became apparent, the court over the objection of the defendants allowed the declaration to be amended so as to include the omitted words and figures. The declaration contained an allegation that the contract had been entered into on October 7, 1922, and also that the purchase included all chestnut timber sufficiently large to make telephone and telegraph poles. We are of the opinion that as the basis of the cause of action was sufficiently identified and stated, the amendment was unnecessary. But, in any event, we are unable to see that the defendants were prejudiced by the amendment and the refusal to grant a continuance. There was no material variance between the averments of the declaration and the evidence offered in support thereof. An effort was simply made to furnish more definite information as to the contract contained therein. The defendants were not required to change in any way their theory of defense. See. 8, chap. 131, of the Code provides that: “If at the trial of an action there appears to be a variance between the evidence and the allegations or recitals, the court may, if in its opinion substantial justice will be promoted thereby, allow the pleadings to be amended, and if it be made to appear that a continuance of the cause is hereby rendered necessary, such continuance shall be granted at the costs of the party making the amendment.” And in *Adams*v. *Adams,*79 W. Va. 546, this *370Court said: "A declaration may be amended at the trial of the action, to make the allegation correspond to the proof offered, if substantial justice will be thereby promoted, and such amendment does not entitle the defendant to a continuance, unless he shows to the satisfaction of the court that a continuance is necessary to enable him to make his defense.” Nothing appears in this case which would satisfy the trial court that a continuance was necessary for a complete defense. The motion was general, based on the fact of amendment alone.

The last assignment of error is that there was no plea to or issue made upon the declaration as amended. The original declaration being sufficient and the amendment being perfunctory, we can see no necessity for making a new issue under the amendment. Defendants’ rights were in no way prejudiced.

The judgment of the trial court will be affirmed.

*Affirmed.*