— Plаintiff’s action is for damages for breach of a written contract. The case was referred to a referee, whose findings for plaintiff were approved by the trial court, and judgment accordingly entered.
It аppears that defendant, who is a retail butcher in St. Joseph, signed a written instrument whereby he agreed to рurchase of plaintiff certain advertising stamps advertising defendant’s business, which were to be given out by defendant to his customers, one for each ten cents’ worth purchased, for which defendant was to pay plаintiff thirty cents per hundred stamps so obtained of plaintiff and given out by defendant. It was further agreed that plaintiff would consign to some merchant in St. Joseph “one Cleveland Special Automobile.” The writing then proceeded as follows:
“For the compensation received by you from us for said stamps you are to print оur name and business on your Automobile Stamp Directory for this town and ^appoint some person or firm in this town to give to each of our customers for each filled Automobile Stamp Directory containing one hundred of such purchase stamps a ticket, giving to the holder an undivided interest in said automobile upon the termination of this proposition, and the faithful compliance upon our part of its conditions.
“It is understood that you have the right to accept propositions from other merchants of this ■ town, and that customers holding tickets from all such merchants who have complied with the terms of their agreements with you shall have equal interest with ours. That is.
“It is further understood that upon each ticket will be printed a certain date, said date to be within one month of the termination of this agreement, upon which а meeting of the holders of all tickets issued shall be held, to agree upon what disposition shall be made оf said automobile. At that meeting each ticket holder shall be entitled to one vote for each ticket held that was secured in the above described manner, the majority of such votes at such meeting to dеtermine the disposition to be made of said automobile.”
The petition charges a failure on defendant’s part to carry out his contract in purchasing the stamps or to carry out other parts of the сontract. The referee found that defendant paid $15 for five thousand stamps but after such payment refusеd to comply further with the contract, and found plaintiff’s damages to be $493.36.
Defendant’s answer was a general denial, though we gather from the record, brief and argument in this court that his defense was that at the time he signed thе written contract it was understood and verbally agreed by him and plaintiff’s agent that that portion of the cоntract requiring defendant to purchase the stamps of plaintiff and give them to customers, was to be erased and was not to be a part of the proposition to be sent to plaintiff at the home officе. The further defense was that the contract was a mere gambling or lottery scheme concoctеd by plaintiff to sell the automobile.
After the trial had opened and partly progressed with the hearing of evidence, defendant asked leave orally, and formally by written request to the court, to be allowed tо proceed with his defense in the examina
Defendant felt that, on account of the verbal agreement, the writing did not represent the real contract and that therefore he should deny it under oath. The claim is made that on account of confusion arising over a former decision of the Supreme Court Commission (Hammerslough v. Cheatham,
As to the defense of plaintiff’s project being a lottery scheme, that was a matter that should have been specially set up in defense. [McDermott v. Sedgwick,
But, aside from the foregoing, we would not feel at liberty tо interfere with the judgment for the reason that the matter of leave to amend pleadings in the course of a trial is largely in the trial court’s discretion, and the court’s ruling should not be disturbed unless it should be apparent that thе discretion has been abused. [Weed Sewing Machine Co. v. Philbrick,