OPINION DENYING A REHEARING.
The opinion of the court was delivered by
It is urged that the pleadings were not broad enough to include an issue of fraud. True, but there was no such issue; it was an action on a contract, and so continued throughout the trial. Defendant could have asked that the pleadings be amended to show whether that contract was oral or written, but he chose to traverse the issue as pleaded — not ,to have the issue more specifically pleaded. While a slight intimation of fraud crept out in the evidence, that was only a minor incident in the narrative of the transaction between the parties.
Affidavits of Colorado witnesses to the contract are presented for the first time in support of this petition for a rehearing. They formed no part of the evidence upon which the trial court based its judgment. They cannot be considered now to disturb that judgment. (See Wideman v. Faivre, 100 Kan. 102, 107, 108, 163 Pac. 619.)
Rehearing denied.