The Montgomery advertiser., 1903-12-16

lime specified in the conkract. . plea which admits the breach of the nontrnaf as co fiae completion of the work within the tune specified, but undertakes % avoid liability by reason of the fact that the contractors were employed by the piaintin to do extra work in connection with the work specsfed in the coHtraet, work, the work stipulated fn sai1 con tract was necessarily delayed heyener the time specided in the eoptFaet, is insufii- |ciept as { defense and subject to de-
 murrer.
 '. Same; sams.--In such case. pieas which aver that the work was not coEn- pieted within the time specified in the contract hy reason of the fact that tbsre were numerous delays occaaioned by pfaintiffs conduct during the per1ed ilxad ey the contract. but which eo not show of the delays complained Of, are bed and subject to deunurrer.
 a Pleading and practice: amendment os complaint by adding count.~Wherb . complaint in civil ease as originally filed contained but one count, the amendment of the complaint on the day of the trial by the addition of second count which introduces no cause of action. and when the record shows that the defendant was perhituFu 70 utt HnH Nsu hle many Ntcas thereto, the allowance of such amend- ment is permissible. and the court does not err In refusing defendants m0tion for a continuance after the anendment.t < or In overruling It's request to he Rss0wed the statutory period within which to Ete pleas to the added count.
 2. Action upon bond to secure the performance of contract; admiseihility of evidence.--Ip an action upon bond given to secure the faithful perfcrnancs of contract by which the ccntraktays agreed te repair the boilers of 2 vessal, where the contract as set out in the com piaint contains the stipuiatinns that the contractors agreed the work would last for period of six months. and one Of the breaches complained of was that the work done by the contractors leaked within less than six months. if upon an examination of one of the contractors as witness he testifies that he was authorized 10 make . guarantee for six months at the time O; entering into the contract. 1t Is permisai- bic upon the cross examination of such witness by the pialntiff to ask him # The guarantees that the work to be done by his arnH would not leak:" such evidence having q tendency to show whether or not the witness was familiar with the contract sued upon, and to test the ap- curacy of his knowledge and recollection of it and not teing subject to the ob3ec- tons that the contract was the best eyt. dence.
 10. Same: same.--In such an action. where the defendant interpoeed the de- fepse that there was . material alteration in the contract after t was executed, st is not competent in the examination of the agent of the defendant who is shown to have represented it in the matter of the execution of the bond sued on. and who had testified that he had no knnw1- edge or notice of any alteration ia the con- tract after 1t was signed, end that no one except himself had anything 10 Co with the business of the defendant relating Co the execution of the bond, to ask such witness 'awhat knowledge did the aefend- ant have, if any, of any alterations which may have been made in the contract, Af, ter it was executed"
 Il. Contracts; execution in triplleate, when one of copies not ths contract agreed upon; question for the gury.-- Where a contract Is executed In tFipij- cate. and in two of the copies thare fe c the other one, and if such provision waa agreed upon as the form of the contract and was properly inserted In sha two copies. srch two copies constituted the contract between the parties, and the otia- CT copy not containing such stipuIaticn or provision is not contract at ali: and in suit upon bond given for the faith- fui performance of aaia een4ract. the. question as to which of the copies tPuiy evinces the contract between the parftee, is q question for the jury.
 B. Pleading and practice; when gslt- erai affirmative charge properly refused.-- Where. in the trial 0f a civil case. the general affirmative charge is requested by, the defendant upon the theory that the evidence established the ayeFmenta Of the plea upon which issue was joined such charge ia properly refused, when thera is conflict in the evidence tending tO egeab- fish the averments of said plea or adverse inferences may be drawn from such eyl- denee.
 B. Same: charge as to liability In one of several counts Of the complaint Where a complaint contains two counts, charge requested by the defendant w1aich instructs the jury that if they beIlevs the evidence they must find for the defendant on one of tine designated counts of the complaint is properly refused, as tend- ing to misiead the court to believe that separate verdict as to each count must be returned.
 Affirmed.
 Opinion by Tyson. ].