
    Ferguson, Respondent, v. Hannibal and St. Joseph Railroad Company, Appellant.
    1. Practice — Amendment at Trial. — The amending of -the pleadings at the trial is a matter within the discretion of the court, and its judgment will not be reviewed unless such discretion has been manifestly abused.
    2. Practice — Evidence—Issues.—It is not error to refuse to admit evidence not relevant to the issues presented by the pleadings.
    
      Appeal from Buchanan Court of Common Pleas.
    
    This was a suit for a breach of contract in failing to transport and deliver to plaintiff at St. Joseph, goods received by-defendant at Palmyra. Part of the goods received were delivered to the plaintiff, part having been taken by soldiers, as alleged by defendant, from the dépdt at Palmyra.
    
      Carr, for appellant.
    
      II. M. Sf A. H. Vories, for appellee.
   Bay, Judge,

delivered the opinion of the court.

One of the principal grounds relied upon for a reversal of the judgment in this case is the refusal of the court below to permit the defendant to ask a witness if the plaintiff was the owner of the goods in controversy at the time they were left at the Palmyra dfepdt for transportation. The petition alleges that the goods were the goods of the plaintiff, and this we think a sufficient allegation of ownership. The answer does not traverse this allegation, and the fact of ownership in the plaintiff is therefore admitted upon the record, and the court properly refused the evidence as not applicable to the issue made by the pleadings. The defendant then asked leave to amend the answer so as to deny the ownership, which was refused by the court, and this is also assigned as error.

The question of amending pleadings, particularly after the trial of a cause has commenced, must necessarily be confided to the discretion of the court; and this court held in Dozier v. Jerman, 30 Mo. 218, that such discretion would not be controlled by us unless it appeared to have been manifestly abused.

In the case at bar the amendment tendered a new issue,5 which the plaintiff might not have been prepared to meet, and which, if allowed, might have forced him to a continuance, and the delay consequent thereon. We cannot therefore say that the discretion lodged in the inferior court was wrongfully or unsoundly exercised. The refusal of the court to permit the defendant to prove that at the time the goods were left at the Palmyra dépdt, it was unsafe for the company to receive goods for transportation from Palmyra to St. Joseph, is also assigned as error, but we are unable to see the relevancy of such testimony. The fact of its being unsafe, might afford a reasonable pretext for refusing to receive the freight; but having received it, it becomes wholly immaterial whether the company acted wisely or not.

Upon a careful examination of the instructions given in behalf of the plaintiff, we are unable to find any error which would warrant the court in reversing the judgment. The instructions given in behalf of the defendant are fully as favorable to it as the law would allow, if not more so.

Judge Dry den concurring,

the judgment will be affirmed.  