Day, Ch. J.
l. contract : tract.y — I. Evidence was introduced upon the trial, tending to show that a contract for the purchase of hogs was made on Sunday, and that, on a subsequent Monday, the defendant agreed that the plaintiff should have the hogs, when the plaintiff made a memorandum in his book of the number, average size, quality and price of the hogs, which was agreed to by defendant. The evidence being closed, the court, among other instructions, gave the following: “ But, if some time afterward, on a day not Sunday, the parties met and agreed upon terms, of the contract, and a memorandum thereof *17was made and reduced to writing, wbicb was read in tbe presence of the parties and assented to by them, then tbis would be a valid contract.” Tbe giving of tbis instruction is assigned as error. Tbis instruction contains tbe law, or its converse does. If the instruction given is incorrect, it follows that, if a contract with reference to a given subject-matter be made on Sunday, no valid contract between tbe same parties, with reference to tbe same subject-matter, can subsequently be made upon a weekday. To state tbis proposition is to refute it. In Story on Contracts, section 619, it is said that any ratification of a contract on a week-day, such as a new promise to pay, a refusal to rescind on demand made, a partial payment and tbe like, would render tbe contract binding, though originally made on Sunday. There was no error in giving tbe instruction. Tbe abstract of tbe record does not contain tbe instructions asked by defendant and refused. The error assigned upon tbe refusal to give them cannot, therefore, be considered.
2. amendment: discretion. II. After tbe evidence was closed, and plaintiff’s opening argument was finished, tbe court, against tbe objections °f ike defendant, allowed plaintiff to file an amendment to bis petition. It is claimed that tbe court erred in allowing plaintiff to amend bis petition without imposing terms, and granting a continuance of the case.
1. Tbe amendment is to be allowed on such terms as may be proper. Rev., § 2977. What terms are proper rests within tbe discretion of tbe court trying tbe cause, wbicb tbis court will not review unless an abuse of discretion be shown. And an amendment without costs is an amendment upon such terms as may be proper. Cayuga Bank v. Warden, 2 Seld. 27.
2. Section 2979 of tbe Revision provides that “ when either party shall amend any pleading or proceeding tbe case shall not be continued in consequence thereof, unless *18the court shall he satisfied, by affidavit or otherwise, that the adverse party could not be ready for trial in consequence of such amendment.”
The record does not show that the defendant was prejudiced by the amendment, nor that he asked for a continuance.
Discovering no error in the proceedings below, the judgment of the district court is
Affirmed.