majority">

OPINION OF THE COURT.

ROBERTS, A. J.

1 The first alleged error discussed by the appellants is the action of the trial court in permitting- appellees to file an amendment to their answer by inserting by interlineation, paragraph No. 9%, setting up the alleged bill of sale and contract given appellants by the Hartman Stock Company, claiming that such action was in direct conflict with the provisions of sub-section 89 of the Code of Civil Procedure, and that said paragraph dV2 set up matters' at variance with the allegations contained in paragraph three of said answer. Sub-section 89 of the Code reads as follows: "In every complaint, answer or reply, amendatory or supplemental, the party shall set forth in one entire pleading all matters which, by the rules of pleading may be set forth in such pleading, and' which may be necessary to the proper determination of the 'action or defense.” We see nothing in the section which would preclude the court from permitting the defendant to amend his answer by interlineation, and as the appellants were given time to, and did reply to the matter set up in the added paragraph, we cannot see how any injustice was occasioned by the action of the court in permitting the amendment, and if it was error, it did not harm the appellants, because the court did not base its judgment upon the bill of sale, but upon the fact that the horse was in sound condition and free from disease at the time of the sale. If the amendment resulted in inconsistent defenses, appellants’ remedy was by a motion to strike or a motion to elect, and no motion having been made 'the objection was waived. 31 Cyc. 151.

2 The remaining assignments of error necessary to discuss, challenge the sufficiency of the evidence to sustain the findings. The court, after hearing the evidence, found that the horse in question was in good condition and valuable for breeding purposes at the time of the sale; that no false or fraudulent representations were made to the appellants to induce them to purchase the animal; that the sore or cut on the horse’s fet-lock was caused after being shod at Durango and was not an old sore. While it is' true the several witnesses for the appellants testified upon the trial that the horse became affected with sores on his legs and body shortly after his purchase similar to the sore on his fet-lock at the time of the purchase, four or five witnesses, among whom was the manager of the horse department of the Hartman Stock Company, who had charge of this horse from the time he was received by the company until his shipment from Ohio to Pueblo, Colorado; the agent of the company at Pueblo,, who had charge of the horse until he was delivered to the agent who sold him to the appellants; and the agent who made the sale, all ‘testified that the horse was in sound condition; the first two witnesses testifying that there was no mark or blemish on his leg or fet-lock at the time he was under the care of each of them, and the blacksmith at Durango, who shod him with the neverslip shoes, testified that the horse had no mark or blemish on his fet-lock at the time he was shod, and McGraw, the agent who delivered the horse to the appellants, testified that the blemish on his fet-lock was made by the neverslip sboe the night after the shoes were placed on him. All these witnesses testified that the horse was in good health and sound condition, and as the record discloses that there was substantial evidence to sustain the findings of the lower court, this court will .not weigh the evidence. Finding no error in the record, the judgment of the lower court is affirmed.

Pope, C. J., concurs in the result.

Citation profile

How this case has been treated — in progress