Woodruff Machinery Manufacturing Co. v. Griffin

Wade, J. 1. A defendant may, as a matter of right, at any stage of the proceedings, amend his pica by striking allegations therefrom; and where, by amendment, the defendant in an action of trover struck from his original answer all admissions dispensing with proof, the burden was upon the plaintiff to show either demand and refusal, or conversion, by the defendant. There was evidence from which the jury could infer that there had been no demand and refusal, and no conversion, and the verdict in favor of the defendant was therefore not unauthorized. 2. Conceding that under section 4494 of the Civil Code the proffered amendment setting up a tender, etc., was offered too late to relieve the defendant from the costs of the proceeding and to charge the plaintiff therewith, the defendant was, nevertheless, not precluded from setting up by amendment, after the first term, a tender of the property to the plaintiff, a tender of the reasonable hire therefor (or alleging that the same had no value for hire), and from disclaiming title thereto. 3. In view of the foregoing rulings, the assignments of error are without substantial merit; the court below did not err in overruling the demurrer or in overruling the motion for a new trial; and the judgment is affirmed with direction that judgment be entered in that court against the defendant for the costs of .the trial therein. Judgment affirmed, with direction.