
    [No. 7778.
    Decided January 22, 1909.]
    L. C. Richardson, Respondent, v. M. C. Cooper, Appellant.
    
    Appeal — Review—Harmless Error — Waiver of Demurrer. Error cannot be assigned upon sustaining a demurrer to an answer, where defendant amended the answer setting up the same defense and introduced evidence in support of the same.
    Appeal from a judgment of the superior court for Stevens county, Chapman, J., entered November 23, 1907, upon findings in favor of the plaintiff, after a trial before the court without a jury, in an action on contract.
    Affirmed.
    
      Slater & Allen, for appellant.
    
      W. H. Jackson, for respondent.
    
      
      Reported in 99 Pac. 577.
    
   Per Curiam.

— This is an action upon two promissory notes which the plaintiff, L. C. Richardson, alleged were executed and delivered by the defendant, M. C. Cooper, to the Miners’ Supply Company, a corporation, and by it assigned to plaintiff. The defendant denied plaintiff’s title to the notes, alleged that the assignment was not authorized by the corporation, and pleaded an affirmative defense, the substance of which was that the notes were executed and delivered by him to the Miners’ Supply Company for the accommodation of the plaintiff, who was secretary of the corporation, and that plaintiff agreed to protect the defendant from liability. To this affirmative defense the trial court sustained a demurrer. On the trial findings of fact and conclusions of law were made and entered in favor of plaintiff, upon which judgment was entered. The defendant has appealed.

The appellant’s first contention is that the trial court erred in sustaining the respondent’s demurrer to his affirmative answer. It is not necessary for us to pass upon this assignment, as on the trial the defendant was permitted to make an amendment to his answer which substantially tendered the same defense. He was also permitted to introduce evidence in support thereof, which evidence was considered by the trial court. Upon this record we hold that the appellant has been in no way prejudiced by the order sustaining the demurrer.

The controlling question presented by the remaining assignments of error is based upon the appellant’s contention that the findings of fact are not sustained by the evidence. It will serve no good purpose to, state these findings in detail. The assignments made present issues of fact only. We have carefully examined all the evidence and conclude that the findings are fully within the issues raised by the pleadings as amended on the trial, that they are sustained by the evidence, which was conflicting, and that the proper judgment has been entered thereon.

The judgment is affirmed.  