Cosgrove v. Metropolitan Construction Co.

The opinion of the court was delivered by Fort, J. Almost all the questions argued on the brief in this case are questions of fact which have been determined by the District Court. There waS evidence from which that court could find that Elliott, the assignor of the plaintiff, was authorized to pay the workmen of the defendant, and that the defendant had agreed to reimburse him for such payments. Similar transactions had previously occurred, and the defendant had paid Elliott the amounts so disbursed by him. It was clearly proved that the debt paid for the defendant company to its workmen was due and was just. The only defence attempted was a mere technicality. : At the trial the District Court ordered the state of demand amended so that it would show that the plaintiff was the assignee of claims of one Robert A. Elliott. It is objected that this was error. This amendment in nowise changed the defence which the defendant had in the action, and was [107] clearly within the power of the court, under the District Court act and the decisions of this state. Pamph. L. 1898, p. 616, § 161; Lambeck v. Stiefel, 41 Vroom 180; Farrier v. Schroeder, 11 Id. 601; Hasbrouck v. Winkler, 19 Id. 431. The judgment of the District Court is affirmed.