36 P. 532 | Or. | 1894
Opinion by
We think the amendment ought to have been allowed, as it was clearly one the court was authorized to make. When the parties proceed with a trial, and evidence is received without objection, supporting material matters which are not set out in the pleadings, the court may permit the pleadings to be amended to conform with the proofs. In Flanders v. Cottrell, 36 Wis. 564, it was alleged in the complaint that Noonan sold the press to Amberg & Co. for the defendants, and at their request, and no other or different cause of action was stated. This allegation was entirely unproved, but the question litigated was not whether Noonan sold the press, but whether he was instrumental in’ enabling the defendants to sell it. The court say: “This question was sharply litigated; much testimony in respect to it was given by both parties; and it was submitted to the jury as the controlling question of fact in the case. All this was done without