154 Mo. App. 600 | Mo. Ct. App. | 1911
This action is really for money had and received. Trial before the court without a jury, issues found for defendant and plaintiff has appealed.
After the evidence was all in the defendant filed an amended answer in which all the facts alleged in the first answer were reiterated, and in addition thereto, it was alleged that the 40 acres covered by the lease had been divided in lots and mining rules and regulations adopted under authority of which parties desiring to mine on said lots could register by consent of the property owners; that after having made the oral agreement with plaintiff, as before alleged, defendant and his
The plaintiff filed a motion to strike out this last amended answer on the ground that it changed the defense. The court overruled this motion and permitted the amendment to be made and this is now assigned as error.
The allowing of such amendments to pleadings as do not change the character of the cause of action or defense is largely in the discretion of the court and should be permitted when the ends of justice so require. [Statutes 1909, section 1848.] We do not think the amendment in this case changed the defense. The defense was that plaintiff had agreed with defendant and his associates that they might prospect upon the • southeast ten acres of the forty upon their own account and reap whatever rewards might come to them, by ■ reason of doing so. The allegation as to this agreement was not changed by the amendment, but it was left as in the first pleading and an addition was made to it alleging that certain mining rules and regulations had been adopted and that defendant and his associates had complied with those rules and regulations. In our judgment the addition of this allegation did not change the substantial defense and'the court did not abuse its discretion in permitting the amendment.
The only other question for us to determine is whether or not the judgment is sustained by the testimony. Defendant’s testimony tended to prove that he had an agreement with the plaintiff such as he had alleged in his amended answer. The testimony on the part of plaintiff tended to prove that the agreement was not as alleged in the answer, but that the agreement was that defendant and his associates might prospect on the southeast ten acres at their own expense and if paying mineral was discovered they should erect a mill upon the land, and that a mill had not been erected.