Tingey

Judgment was awarded plaintiff in this action. The defendant appealed from an order made denying its motion for a new trial and presents the appeal upon a bill of exceptions.

The action was based upon a contract whereby plaintiff’s assignor agreed with the defendant to do certain excavating and grading work for a specified sum per cubic yard. The cause of action was stated in brief form, it not appearing from the allegations thereof whether the contract sued upon was written or oral. The defendant by its answer, after denying that plaintiff’s assignor had performed the work described in the complaint, alleged that the contractual relation between the parties depended upon a writing which was set up as an exhibit attached to the answer. In the course of the trial plaintiff was allowed leave to amend his complaint by incorporating therein the written contract as alleged by the defendant, and alleging other facts showing that the oral agreement under which the work was commenced was incorporated in the writing which was signed at a later date, but before the alleged completion of the work; that at the time the preliminary negotiations were closed it was agreed that the contract…