Amendment: discretion. — The petition counts upon a promissory-note. Defendant in an amended answer admitted the execution of the note, and in a cross-demand claimed damages for a breach of warranty in the sale of a span of horses. The alleged warranty was that the horses were sound. ■ On the trial the warranty proved, if any, was, that the horses did not have the .glanders. After the testimony and argument to the jury were closed, defendant asked and obtained leave to again amend his answer, which amendment, however, was not in fact filed until the next day after the coming in of the verdict, which was in defendant’s favor. This amendment, conforming to the proof, alleged the warranty to be. that the horses had not the glanders. And now, because, as plaintiff claims, the verdict was rendered upon an issue not sustained by the evidence; and because the court allowed this amendment at the close of the evidence, and to be filed after verdict, he asks for a reversal of the judgment. We do not stop to inquire whether the amendment was material, — that is, whether the evidence did not correspond with the answer as it stood at the time the case was tried. However this may be, we are clear that there was no such prejudicial error in the action of the court as to justify a reversal of this case. The variance could not have surprised the plaintiff. It was but the fair exercise of a discretion wisely lodged with the court in allowing an amendment to meet the case made by the proof; all of the essential facts being, of record. The amendment was slight, filed, it is . true, after verdiet, and yet in accordance with leave previously asked and obtained; and under such circum*85stances we should have to override the plainest teachings of our statute to regard the action of the coui;t erroneous. Upon this subject see Nevision, sections 2972, 2973, 2977, 2978, and the cases cited thereunder.
