Dressler

The plaintiff recovered judgment for damages for breach of a contract to accept and pay a stipulated sum for an agreed amount of crushed rock. The appellant contends the court abused its discretion in refusing to permit him to amend his answer, after a reversal of the judgment on appeal, to set up an oral agreement alleged to have been made subsequent to the execution of the written contract, and to reform the contract upon which the action was originally tried. The judgment is not otherwise assailed.

The complaint was filed in February, 1930. It was alleged that pursuant to the terms of a written contract marked exhibit “B”, and attached to the complaint, the defendant agreed to accept and pay for “15,000 cubic yards more or less of 1 inch crushed rock for surfacing said highway, . . . the exact quantity to be delivered shall be agreed upon between the parties hereto as the work progresses”, at the rate of $1.55 per cubic yard. The answer admits the execution of the contract and specifically denies “that any other, further or different contract was made between said parties, or any of them, than as is set forth in exhibit ‘B’ ’’ of the complaint. It is conceded the defendant…