Young

This is an appeal by the defendant from a judgment in favor of the plaintiff in an action for damages for breach of a contract. The plaintiff alleged in his complaint that he entered into a contract with the defendant under which he was to haul all ice sold by the defendant in a certain territory during a certain season, also alleging his readiness, willingness and ability at all times to perform and that the defendant, without cause, violated the agreement and refused to permit him to do the work. In its answer the defendant denied each and every allegation of the complaint.

During the trial the court refused to permit the defendant to introduce evidence going to show that the plaintiff was not available for the work when wanted and tending to show that by his conduct he had given the defendant good cause for discontinuing his services. Evidence along this line was refused on the ground that such matters had not been pleaded as an affirmative defense. Thereupon, the defendant offered an amendment to its answer in which such matters were set up as a defense to the action. Permission to thus amend was refused. That these rulings of the court were erroneous is the main point raised…