
    No. 21,159.
    B. M. McCue, Appellant, v. J. W. Hope, Appellee.
    
    OPINION DENYING A REHEARING.
    Appeal from Finney district court; George J. Downer, judge.
    Opinion denying a rehearing filed February 9, 1918.
    (For original opinion see 102 Kan. 147.)
    
      F. Dumont Smith, of Hutchinson, for the appellant.
    . William Easton Hutchison, Albert Hoskinson, R. W. HosMnson, and C. E. Vance, all of Garden City, for the appellee.
   The opinion of the court was delivered by

Mason, J.:

The plaintiff on his appeal complained of the admission of evidence offered by the defendant upon an issue not raised by the answer. Of this complaint it was said in the original opinion that, while the evidence was objected to on other grounds, no objection was made to it as not being within the pleadings, and that it did not appear that the plaintiff suffered any substantial, prejudice from the broadening of the issues, no delay having been asked to give opportunity to produce further evidence on his part. In a petition for a rehearing it is said that although the specific objection referred to was not shown in the abstract, it was in fact made. Treating this statement as effecting an amendment in the abstract, we are of the opinion that the admission of the evidence is not a just ground of reversal, for the other reason given — that the defendant suffered no actual prejudice, not being deprived of a full opportunity to meet the defendant’s claims. Both in the plaintiff’s brief and in the petition for a rehearing the trial court is spoken of as having said that the action was one for remaking the contract between the parties. What the court said was that the action was one “to reopen the account and settlement and remake it in accordance with the agreement of the parties.” We interpret “it” as referring to the settlement, not to the contract.

The rulings referred to in the petition for a rehearing have been reexamined and the court- remains of the opinion that no reversible error has been shown.' The grounds upon which a reversal is asked seem to us to involve the merits of the controversy over the facts. We do.,not regard the evidence as justifying this court in overturning the judgment. No special findings were made, and the separate conclusion of the jury as to the different items involvéd is not shown.

The petition for a rehearing is denied.  