State Ex Rel. Walcott v. Wells

COCHRAN, J. This action was commenced by the Chattanooga State Bank of Chattanooga, Okla., as plaintiff, against Mrs. Mary Wells, as defendant, to recover on a promissory note. After the suit was brought, the bank became insolvent and the Bank Commissioner was substituted as plaintiff. The case was tried before a jury and resulted in a verdict for the defendant, from which the plaintiff lias appealed. The defendant admitted the execution of the note, but alleged that 'she signed same as surety and that she signed it only on condition that the same was to be signed by John Broshears as principal, and the note was delivered to the plaintiff on that condition. The answer alleged that this agreement was oral. During the trial of the case, the defendant asked permission to amend the answer by alleging that the agreement was oral and written, so as to conform to the proof. This amendment was permitted by the trial court, and the plaintiff alleges that this was error because it changed substantially the defense of the defendant. Section 318, Comp. Stat. 1921, permits the court before or after judgment to permit the amendment of a pleading where the amendment does not change substantially the claim or defense. It is our opinion that the change in the instant case did n|ot substantially change the defendant’s defense. It is next contended that the verdict, of the jury is not sustained by sufficient evidence. The insufficiency of the evidence of the defendant was not presented to the trial court by a demurrer to the evidence, a motion for a directed verdict, or in any *70 other manner, and, ini these circumstances, this court will not review the evidence for the purpose of ascertaining whether the verdict is sustained by sufficient evidence. The judgment of the trial court is affirmed. McNEILL, V. C. J., and NICHOLSON, BRANSON, and MASON, JJ., concur.