
    James Iverson and another vs. John Dubay.
    November 7, 1888.
    Sale — Action for Price — Pleading and Proof — Variance.—In an action for the recovery of the price of goods sold, proof that the purchase price was more than that alleged in the complaint held not to constitute a material variance.
    Pleading — Amendment at Trial — Refusal Sustained. — Refusal of the court .at the trial to allow an answer setting up a counterclaim to be amended so as to make it applicable to a wholly different subject, sustained as a proper exercise of discretion.
    Appeal by defendant from an order of the municipal court of Minneapolis, refusing a new trial.
    
      Armstrong Taylor, for appellant.
    
      Byron Sutherland, for respondents.
   DicKinson, J.

This action was for the recovery of a part of the price of a wagon, alleged in the complaint to have been sold to the defendant on or about August 8, 1887, for the price of $140. The plaintiffs’ evidence showed the agreement to have been made on the 8th day of August, and that the wagon was delivered later in the month, but that the price was $145. This was not a material variance, affecting the plaintiffs’ right of recovery.

The plaintiffs had previously sold another wagon to the defendant, in the month of June. The answer having set up a counterclaim growing out of a breach of warranty respecting the wagon referred to in the complaint, the defendant, upon the trial, asked leave to amend so as to make the counterclaim applicable to the wagon sold in June. The plaintiffs being unprepared to meet such a claim, the application was denied. This was a matter of discretion, and there was no impropriety in the action of the court. Under the answer, without amendment, the claim of a breach of warranty respecting the wagon sold in June was not a proper subject of proof.

Order affirmed.  