
    Dyer et al. v. McPhee.
    1. Benefit to a promisor is not essential to a valid consideration.
    S. If a benefit accrues to Mm who makes a promise, or if any loss or disadvantage accrues to Mm to whom it is made, and accrues at the request or on the motion of the promisor, although without benefit to the latter, the consideration in either case is. sufficient to sustain an action.
    
      3. A motion to amend an answer having in this ease been addressed to the sound discretion of the court, nothing short of a plain and arbitrary abuse of right would justify this court in reversing the ruling of the court below in denying the motion.
    4, Where an allegation in the complaint is denied by the answer, it is error to instruct the jury that it is admitted. But when the evidence shows that the fact was not contested, was established by the evidence, and there was no conflict of testimony, held, that the error did not prejudice.
    
      Appeal from District Court of Arapahoe County.
    
    On the trial of this cause in the court below the plaintiff, to maintain the issue on his part, produced as. a witness:
    Timothy Dyer, who, being sworn, testified:
    Am one of the defendants; recollect the bond executed! by O’Connor as principal, and myself and Murrin as sureties, to the lodge. The bond was afterwards delivered up to us by McPhee.
    Q. What became of that bond ?
    A. I paid McPhee $880, and he handed me the bond and I destroyed it.
    Plaintiff moves that outside of the statement of the' destruction of the bond, the answer be stricken out.
    Motion allowed. Defendants except.
    Charles D. McPhee, sworn:
    Am the plaintiff; know the defendants and O’Connor. I recollect the bond executed by O’Connor and the defendants; it is the bond Dyer says I delivered to him.
    The conditions of the bond were, as I recollect them, exactly the same as in the one I gave; saw the bond and read it; it read that O’Connor entered into a contract with the lodge to build their building, and for the performance of that work, and for protecting them harmless from any liability. Dyer and Murrin were securities.
    In September, 1876, I knew O’Connor was insolvent. In the fall of 1876, I had a talk with defendants about O’Connor’s inability to complete the building and pay off the liabilities.
    Q. Go on and tell what they said about the inability of O’Connor to meet his liabilities.
    Defendants object. Objection overruled.
    Defendants except.
    A. September 14th I had a letter from O’Connor; went to Cheyenne, met O’Connor, and we went to Dyer. Dyer said, as they were on the bond, and O’Connor owed us more than all the rest together, this money had best be paid to us, provided we could release him and Murrin from the bond. He said Mr. Nichols had already filed a lien for $420 for work done on this building, and we had a claim of $2,200. He did not know whether the iron and glass were paid for, and some other bills; said they would rather get clear of the bond, and would pay us this, provided they could get off it. At the time I received the bond, about half-past 6 in the evening, Dyer told me to wait until after supper, and Murrin would be in. We went in the small room of the dining-room; it was about 9 o’clock, Saturday, September 16th. I turned up the corner of the table-cloth; we had three chairs; O’Connor, Murrin and I sat down. Dyer asked me for the bond, and I said, “Here, Mr. Dyer, here is your bond.” I passed' the bond to Dyer, and he stepped out of the room into the bar-room, and came in with the roll of bills. He sat down next to Murrin, unfolded the roll, and said, “I will count out this money,” and he counted out $880. He said, “McPhee, I never received this money from you, I received it from O’Connor, and I shall pay it over to O’Connor, and you and O’Connor can fix the matter up the best you know how.” I said, “Mr. Dyer, that is not the condition of our bond; the conditions agreed upon were that you should pay me this money, and Mr. O’Connor and I can fix our own receipt upstairs,” and with this Murrin stepped up and tapped O’Connor on the shoulder; Murrin stepped into the barroom, followed by O’Oonnor. O’Connor had the money; Dyer passed it into his hands; I was getting uneasy; Dyer sat there probably a minute or two, and When he got out in the bar-room, asked me if I Was not going to drink. I told him no, I did not feel like drinking. I knew it was a trick, still I got nervous; and I looked around and could not find them. Saw Mr. Currigan standing there, and asked him which way they went out. He said he would find them for me.. About 3 o’clock I found the four of them together; they were in the saloon next to Murrin’s; three of them drinking, and I never saw them any fuller. I asked O’Oonnor what it meant, and he said they were only playing a joke, and said, '“You need not fret, it will be all right.” I said, “ I take the train Monday morning; my wife has telegraphed me "to return.” My wife was liable to be confined any moment. My bond was out. I was out $1,820- before that in another transaction; was out With O’Oonnor. The whole business just set me about half crazy. Dyer said, “If you don’t go home and shut up your mouth, I will -have you in the calaboose in five minutes1.” I saw them before this for over an hour ■— about 11 or 12 o’clock, in fhe yard in the rear of Murrih’s place;
    Sunday afternoon I went .into Murfin’s place and we were talking; I wanted to know about this matter; had stayed over- there; this joke was carried too far; think Murriñ said it was all fun in the first place. Murrin said, “ There is a building that O’Oonnor put up for me;” and lie said the roof leaked like a riddle, and had cost him $350 to replace it, and he was going to keep that much money. I had an understanding with O’Connor that if they paid me the $880 I was to give $80 of it back, so that it was really $800 that I gave O’Connor credit fori
    Charles D. McPhee, cross-examined:
    ■ Arrived in Cheyenne on the evening of the 14th or loth, it was Thursday or Friday; was there two days before giving the bond; Saturday I gave the bond; Dyer first suggested my giving the bond in lieu of their bond; I had most of the business with Dyer; made the agreement with both of them at Dyer’s; made the agreement with Dyer, Murrin and O’Connor; O’Connor was on both bonds. The agreement was made the day before I gave the bond, and the bond was given in pursuance thereof; never received that money; never got a dollar of it. O’Connor afterwards gave me $500, but not that money; all I know about that is, I have O’Connor’s word for it; he gave me the money Sunday night, about 9 o’clock; had made arrangements to go home Sunday night, about 5 o’clock; then I had another dispatch to come home next morning. O’Connor said he raised $500 from outside; it was not out of the money paid by Dyer; said it was money obtained from the Marks & Meyer’s job next door. O’Connor was with me when Murrin said O’Con-nor owed him for the roof, and he was going to keep the money; no one else was present when O’Connor gave me the $500; did not then agree with O’Connor that the other $300 should be paid to me by O’Connor when he made certain collections; he never asked me for such an agreement, because he owed me $1,600; he agreed in the settlement that the $800 should be sent down on Thursday evening following after I left. When we got in the room Dyer called upon me for the bond, and he either took it in his hand or put it in his pocket, walked towards the safe and came back with the roll of bills;. Dyer did not say, “Mac., here is your money,” and lay it on the table. I did not count the money; Dyer did. Did not go to Murrin’s house about 3 o’clock; went to> his store; did not talk with Murrin until 2 o’clock Sunday. O’Connor came over to the hotel about 11 o’clock and told me how the thing was put up on me, and it was; all a game to have some fun on me, and that he would get the money out of them, and tried to pacify me; said it would be all right. At the time Dyer handed the money to O’Connor I said, “ That is not my agreement;,’5 I meant, my agreement is that you shall pay me this money, and I and O’Connor can fix our own receipts.
    Charles D. McPhee, re-examined:
    It was to Dyer that I said, “ This is not my contract.” My contract was with Dyer, Murrin and O’Connor; it had to be satisfactory to all three; Dyer and Murrin wanted to know if it would be satisfactory to O’Connor to turn me over the money, and if so, we would give the bond and they would give me the money, instead of holding until these lawsuits were settled; O’Connor’s part was simply to consent to the arrangement, and they would pay me the money which they had.
    M. D. Curricán, sworn:
    Know defendants in this case, and O’Connor; was in Cheyenne during the summer of 1876, following my trade of plasterer. Recollect McPhee coming there about the. middle of September, and having money transactions with O’Connor, Dyer and Murrin. I was in Dyer’s office the evening this money was to be paid to McPhee; it was right after supper • — -8 or 9 o’clock, I presume. Heard the conversation about this money, but did not pay much attention to it; was standing at - the counter in the office, and bar-room. Dyer came out from the dining-room back of the office; knew Murrin, McPhee and Dyer were in the rear part of the building; was not positive, because did not see them; they were coming in and out all evening. Saw McPhee, Murrin and O’Connor go in then; don’t know where they went; saw them going through. Dyer came out and unlocked the safe, took out a roll of bills and threw it down on the counter, and said to me, “ Garvy, I am going to give that money to McPhee.” Staid around there for some time; first one came out, and then another, and there was considerable fuss for a whilef Murrin came out and O’Connor, I believe; and after a while McPhee came out pretty quick; he could not see anybody, and stopped around there for some time, and asked me if I knew where they went. At McPhee’s request I went out and found them; found Dyer, Murrin and O’Connor in Murrin’s place of business. They talked about taking the money from O’Connor and trying to keep McPhee in Cheyenne three or four days longer, or something of that kind. I kind of advised them to keep the whole of the money from McPhee. We went out in the back yard and talked the matter over, and they agreed to carry the programme out. This was, that Murrin was to get some of the money. Don’t know whether Dyer was to get any of it; heard him say that O’Connor was owing him, and that he would keep money also. Saw Murrin get some money that night; don’t think I saw Dyer get any. O’Connor paid the money; would not be positive as to the amount. Don’t know of any game being set up before Dyer went back with this money into the room where it is supposed McPhee and Murrin were. There was nothing said except what I said myself, that I remember. Recollect McPhee, Murrin, O’Connor and Dyer coming into MacNamara’s saloon. It might have been 2 or 3 o’clock in the morning. It was about 12 o’clock at night when we were in Murrin’s back yard together.
    M. D. Corrigan, cross-examined:
    Dyer threw the money on the end of the counter, and stood right by it. It was probably five minutes before I saw any of them come out of the room after Dyer’s return to it. Murrin and O’Connor came out first, and I think together; they left the room together. It might have been quite a little while before McPhee requested me to look for these parties.
    After I found Murrin, Dyer and O’Connor, I think it was- at my suggestion that we went out into Murrin’s back yard. My understanding is, that I suggested to go out there and put up some sort of a game on him to keep him in Cheyenne three or four days. Wanted to see him kept there a week or two myself. I had had a few nips that night. Didn’t think I was under the influence of liquor. The money was given to Murrin after he came in from the back yard; don’t know how much he was given. The conversation was that Dyer would get some and Murrin some. No one else got any that I know of. I did not get any; don’t remember of seeing Dyer get any.
    Re-examined:
    When the money was thrown down on the counter, and Dyer said it was for McPhee, he also said, “We will have some fun with Charlie,” or “ McPhee,” or something like that. I said, “ I hope he will not get a cent of it.”
    Re-cross-examined:
    Q. Don’t you know that in your examination you said, nothing was said about any game until long after-wards ?
    A. While Dyer was taking the money out of the safe, we had quite a -talk for a few minutes, and I really did the most of it myself, but I didn’t care about making mention of it.
    Q. How does it come that you stated this forenoon, that nothing was said between you and Dyer, in reference to this “game,” until after he went into the room, and now remember this “fun ” part of it ?
    A. Well, I don’t know what the “fun” part of it amounts to, but so far as the “game ” was concerned, I did not conceive there was a game until I was in the crowd myself in Murrin’s store.
    Q. How did Dyer come to say to you, “We’ll have some fun with Charlie.” What did he mean by that ?
    A. I don’t know what he did mean; didn’t take anything from it and don’t know.
    Plaintiff rested.
    Timothy Dyer, sworn for defendants:
    Am one of the defendants; had no contract in connection with Murrin and O’Connor with MePhee.
    Plaintiff objects to introduction of testimony in reference to the contract. Objection sustained.
    
      Whereupon counsel for defense made the following offer of proof: That O’Connor, Murrin and Dyer never made or entered into any contract with McPhee as testified to by him in his examination in chief, and that Murrin and Dyer never made any contract with McPhee in reference to that money at all.
    Offer denied by the court. Defendants except.
    Witness resumed: Don’t exactly remember the date when McPhee came to Cheyenne in reference to this $880; remember that he. did come and that the money was turned over to him on Saturday evening; saw him Saturday, before supper. He asked me if I would give up the $880, if he would relieve us from the Odd Fellows. I said, “Certainly, that is all we want.” He said he had our bond, and believe I told him to come in after supper. He came after supper; O’Connor and Murrin were there; we went into the bar-room and then into'this little room; the others sat down at the table, while I was standing; I asked McPhee if he had the bond; think he said yes. He gave me the bond and I went out and got the money out of the safe. Cannot remember speaking a word to Ourrigan about anything, while out there. When I took the money out of the safe I took it into the dining-room, where the three gentlemen were waiting; stood up by the table; counted it out bill for bill, $880, and said, “Mac., there is your money,” and I turned and walked out. I laid the money on the table; guess it lay there two or three seconds after I turned and walked out. McPhee said,--“Jim, let’s go upstairs and settle.” I went out of the room first; Murrin followed me; McPhee and O’Con-nor came out after Murrin. I laid the money in front of McPhee on the table. I staid in the bar-room perhaps half or three-quarters of an hour; would not have left then, but McPhee asked me to go out; asked where O’Con-nor went; told him I didn’t know; Murrin and O’Connor went out at the front. McPhee told me in the bar-room that O’Connor had the money. I said, “Why did you let him take it,” and he said he thought O’Connor was going upstairs to settle. McPhee went out, and after I got through with some guests I went over to Murrin’s. Nothing was said there, that I heard, in reference to this matter. Staid there about twenty-five minutes, then I went home and did not leave my establishment again that night. Went to bed about 1 or 2 o’clock, my usual bed-time. Did not see Currigan after leaving Murrin’s. I was not under the influence of liquor.
    All I know about the game being put up on McPhee is what I have heard since my arrival in Denver.' When I went back in the dining-room did not say anything about having received the money from O’Connor, and that I would pay it back to him; McPhee did not on that occasion say, “ This is not my contract,” or anything of like effect, that I heard; I had no contract with McPhee; Mc-Phee always stopped with me in Cheyenne, and he and I have always been good friends; I did not say to him that 5f he didn’t shut up his mouth I would have him in the calaboose.
    Cross-examined:
    McPhee was in Cheyenne two or three days before these "transactions; saw him off and on. Keep a hotel there, and McPhee was stopping with me. Don’t think I asked McPhee for a receipt; there were four witnesses to my payment of the money, and that was enough; the business that took me out of the little room was that it was supper time, and my clerk goes off at half-past 7, while I stay in the office from that untiP half-past 10. McPhee did not say a word about the matter to me until they had gone; did not complain to me about O’Connor taking the money, nor about his not going upstairs to settle, nor about his action in getting the money. The first I knew anything was wrong was about five minutes after O’Connor and Murrin went out, when McPhee said O’Connor had agreed to go upstairs with him, and did not go; that O’Connor had taken the money, and he asked me if I would go and find O’Connor; I told O’Connor, when I found him, that McPhee was looking for him, and that is all I told him. Know MacNamara’s saloon, but don’t remember being there that night. Saw MoPhee the next Sunday; he was anxious for O’Connor to settle withjbdm; he did not impute any wrong act to me, Murrin or Currigan.
    Luke Murrin, sworn;
    Saw McPhee on that Saturday evening at my place of business; he was anxious to get a new bond, so that he could settle with O’Connor, and asked me to come over to Dyer’s, which I did, about half-past 7 o’clock; we four went into the little dining-room; Dyer was in his shirt sleeves, and asked McPhee if he had the bond with him; he turned over the bond to Dyer, who went out and got the money; I saw him count the money; he brought the money back into this room; he was out just while he was opening the safe, not over two or three minutes; Dyer counted out the money, passed it over, and said, “ There is your money; ” I did not see him hand it to anybody; I got up and walked out; had business over home; Mr. Dyer was not half his length ahead of me as we went out; had a drink together. When Dyer counted the money and said, “Mac, there is your money,” McPhee said to O’Connor, “Jim, let’s go upstairs now and fix up; I want to get home in the morning; ” in a few moments O’Connor and McPhee came out; don’t know where the money was when I came out. O’Connor and I went out together; went into a barber shop; O’Connor talked about some grievances; we then went to my place and found Currigan there in the sample room, feeling rather happy; I relieved the man working there for a few minutes, and then went into my own office and talked to O’Connor and Currigan; others were in and out. When Dyer counted out and paid the money he said nothing about getting the money from O’Connor, nor did McPhee say, “That is not my contract.” I remained in my office until mv closing-up time, about 11 o’clock, and then went straight home; was in bed before 12 o’clock, I think; don’t know that I was under the influence of liquor. Overheard Ourrigan tell O’Connor that he ought not to pay McPhee; this is all I know about any game. O’Connor first told me he had the money, in the barber shop. That evening I borrowed some money from O’Con-nor and paid him back Monday morning. Somebody wanted to get some money, and I didn’t have any currency, and borrowed it from O’Connor, not exceeding a few hundred dollars; borrowed it for some friend; cashed his check; never received a dollar of this money except this which I returned. McPhee came to me the next day to have us get O’Connor to fix up with him; I told him that was his business. When I left the room I did not tap Dyer on the shoulder; he was not near enough; did not sign him to come out; said nothing to McPhee about any roof that night; he came into my place about 10 o’clock, and called O’Connor out. McPhee never made any demand on us for money; never said anything about holding us responsible for it.
    Cross-examined:
    We were at Dyer’s by agreement, to have a final settlement of this matter.
    Dyer shoved the money towards where McPhee and O’Connor were; I could not say just where he put it; as long as it was there I was satisfied. Dyer turned and immediately went out. I immediately got up and did not see what became of the money. McPhee and O’Con-nor kept sitting down when I went out. Did not see either of them reach to take the money. Dyer and myself were out a minute or two before they came out. Don’t know who said to set them up. I took a glass of beer with somebody. Didn’t hear anything said about money. Think it was a quarter after 9 when O’Con-nor and I were in the barber shop. We waited in Dyer’s about fifteen or twenty minutes before we went in the little room. I got to my store about half-past 9.
    
      The way I came to borrow money from O’Connor is, that it is very often the case that I have to get currency in the evening to make change and cash checks. That night I had paid a check with O’Connor’s money, and asked him if he wanted a check, and he said, “ No, give it to me on Monday morning.” Think it was a man working for me on a wood contract, whose check I paid. It was in the neighborhood of $200.
    Don’t believe I was in MacNamara’s saloon after 12 o’clock that night; may have been there before 12.
    James T. O’Connor, sworn:
    Am the one who contracted for the erection of the lodge; was present on this Saturday night. Murrin, Dyer and McPhee were there. I boarded at Dyer’s hotel; McPhee stopped there; we first met at the bar and adjourned to this little dining-room. There were $880 in the hands of Dyer. McPhee was to get $800 of that. Went in there for this purpose. Dyer asked McPhee if he had the bond. McPhee said he had and gave it to Dyer, who then went out and returned with the money, counted it out on the table and laid it on the table; cannot remember exactly what he said; the money was laid on the table, and I took it up because I was going to settle with McPhee; we were going up to my room to settle as soon as the money was turned over; but just about then, don’t remember who went out first or how it was, but McPhee showed signs of uneasiness on account of my taking the money at the time. I took up the money and we went out to the bar and had a glass of beer. While we were standing there, Colonel Murrin said to me, “ Let’s go down to the barber shop and get shaved.” We went to the barber shop, and then went to Murrin’s place; went through the alley and in the back door. Currigan met us at the door, and said to me, “McPhee is crazy, looking for you,” and also said, “He thinks you fellows are putting up a job to beat him out of that money.” That was the first I heard about putting up a job. One of us said, McPhee was in a greater hurry to get the money than he had been to furnish me with material; think Currigan said McPhee ought not to get a cent; said he was the cause of my having part of the contract price deducted, which left me short.
    Don’t remember that Dyer said he had “received the money from O’Connor,” etc.; don’t recollect that McPhee said “that is not my contract;” don’t recollect McPhee making any fuss; there was a little uneasiness after I picked up the money. There was something said, when I picked up the money, about settling. McPhee acted uneasy, and said something about the money was his. I ■said, “We will go upstairs and settle.” He said, “All right, of course we will go upstairs and settle.” Think at this time Dyer and Muran had gone out of the room. After we went back to Murrin’s I had this talk with Currigan, when he said it was a good joke on McPhee and we ought not to give him the money that night; and then Colonel Murrin came to me, and asked me if I could let him have some of that money until Monday morning; so I gave him part of it, but don’t remember how much. He paid it back to me, either Sunday or Monday. Didn’t pay any of this money to anybody else.
    I gave McPhee $500 of this money either Sunday night or Monday morning; don’t remember which. Gave him $500 out of' this $800. Did not tell McPhee it was not this same money. It was this way: The Odd Fellows deducted $300 out of the contract price. McPhee knew that I was hard up, and that there were other claims against me. I told him if I paid the full amount of this $800, other people would crowd me so that it would close me right out of business. I told him I would pay him $500 then, and I had sold a bill of lumber for which I expected to receive $200 the following week. There was" still $100 kept back on the Odd Fellows’ building, which would make $800, which I was to get in a few days, as soon as I washed the front down with acid. I was to pay him the balance as soon as I collected it; gave him $500, and he went home perfectly satisfied. I told him on account of my being delayed on this building, of course they deducted this $300 out of my contract price, and I expected to get this when I settled up with them. I owed him the other bills because I carried on a lumber yard. The lodge deducted from my contract price because I was delayed, owing to his not furnishing me with material as he agreed to. Don’t know that anyone else was present at this conversation, which was in my room. I think after he got this money he went home to Denver. When McPhee called me out of Murrin’s, we went to Dyer’s hotel; I said, “Charley, don’t get excited about this thing; you will get this money all right, and don’t make any fuss about it.” He was nervous, and said his wife was sick, and he wanted to go home. Think we went back to Murrin’s and stayed there until about half-past 11. Don’t think we stayed any later; went straight from Murrin’s to Dyer’s, and went, to bed. Don’t remember that I saw McPhee again that night. Don’t remember that Dyer or Murrin were under the influence of liquor that night. We were all drinking some; never saw Dyer drunk. Have had a talk with McPhee since this suit was brought. It was a year ago last October, here in Denver. McPhee told me he had sued Dyer and Murrin, and proposed to make them pay that $800. I told McPhee not to do it; that I would have to pay it in the end myself, and I did not want any more expense; I had lost money enough* and I requested him not to urge this suit. I told him I was going to Silver Cliff, and as soon as I could raise it I would pay him the $300. He did not say much, and I never heard of it until now. McPhee said to me, “ I will make' these fellows pay this $800, although I have received $500 of it;” but he said, “ If I get it I will give you credit on the notes I hold against you now.”
    Cross-examined:
    Have had the $880 in my possession first when I gave it to Dyer, and afterwards when the bond was given; was. intimate with Dyer and Murrin; had lived there over a year. Before I went in there that night I had determined that I would take the $S8Ü so far; that I would take it and pay it to McPhee; I determined this because I considered that I owed it to McPhee; did not understand that Dyer was to pay it to McPhee; I understood Dyer was to pay it to me and I was to pay it to McPhee; had the understanding with Dyer; I had given the money to Dyer; I was to keep $80 out of the $880; it was not necessary that it should pass through my hands; I did not think it made any difference who picked it up; when I went out of the house I had no intention of doing anything else than paying it to McPhee; it was only a joke that we did go out when we noticed McPhee was uneasy. Don’t recollect that Dyer said anything when he counted the money and pushed it on the table'; don’t exactly remember where he laid it with reference to me and McPhee; think I picked up the money just as soon as Dyer put it on the table and said, “There is the money;” I wasn’t in any hurry or fuss about it; I expected to hand it over to McPhee in a few minutes; I think if McPhee went to pick up the money I would not have skid a word. Mc-Phee commenced to be uneasy as soon as we went out into the bar-room. When I went to roll up the money McPhee said, “Let’s go up now and settle,” and I said, “ All right;” as soon as we stepped out some one said, “Let’s have a glass of beer;” don’t know who said it; we had a glass or two of beer, and then noticed that McPhee did not drink; we had to go through the bar-room to get upstairs to my room. McPhee proposed to go to my room; we did all the business we had to do in that room; the accounts and bills were upstairs. Don’t remember when I mentioned to Murrin I had this money; think Murrin and the rest knew I had it when I was in the barroom. Don’t remember that anyone else but Ourrigan told me McPhee was looking for me. Í was considerably indebted to McPhee over and above the $800; think he holds my note's for something between $600 and $700. Did 
      not give McPhee three notes in payment for what I owed him on other buildings after deducting the $500. When McPhee came to Cheyenne I had on hand a lot of sash and planed stuff, which he then took back, and we settled up, and, outside of this $300, I owed him $800, but not outside of the $500, by any means; don’t think I had ' written him a short time before this transaction that I would draw money from Marks & Meyers and pay him; the money that I agreed to pay McPhee on this transaction was to come from Portuguese Philips.
    Q. Is- that your letter (showing a letter)?
    Defendant’s counsel objects.
    The court:
    Let us see if witness identifies letter ?
    A. Yes, sir.
    , Q. Did you send that letter by mail to McPhee & Keating?
    A. Yes, I did.
    Objection overruled, and letter then read, being as follows:
    “Cheyenne, August 26, 1876. “Messrs. McPhee & Keating:
    “ Gents:
    
    
      “ I suppose you think that we are all dead up here. I saw a card from Me to Garry, asking why in h — 1 we did not write. Well, for myself, I have been trying to get things square with the Odd Fellows, and have only partly succeeded, but send me a release, and I will send you a draft, or go down on Tuesday. Tim Dyer is going to Denver on Tuesday, and I may go too. I will either go, send the money with him, or send draft. E. F. was up here this week and got the Ellis job. Johnson’s house was not let, he is remodeling his plans. There is nothing else in the wind so far. I will soon be through with Marks & Meyers, and will send you some money from that quarter.
    “ I am, respectfully yours,
    “J. T. O’Connor.”
    
      Defendant excepts to the ruling of the court allowing, said letter to be admitted as evidence.
    Witness resumed: Don’t remember speaking to Carr about the trick that had been played on McPhee in his not getting the $800. I regretted that this thing occurred on Saturday night, and if I had had any idea there-would be such a fuss it never would have turned out so.
    Did not say in conversation with Currigan, in substance,, that McPhee did not go away as bad off as some people-thought he did, as I raised $500 outside of the Odd Pellows’ transaction, and did not add, “For God’s sake, don’t mention it to Dyer or Murrin; ” not a word of that at all.
    On this Saturday night said to McPhee that I had lent-part of this money to Murrin, and not to say anything more about it until Monday morning, and he would have his money. Did not tell him Murrin had got that $880' from me; told him it was a joke, and for him not to make any outside talk about it. Know we had a settlement, but don’t remember whether or not it was Sunday night. The notes were written in my room at the time: I paid the $500, but whether it was that night or following morning, don’t remember. Did not promise to send McPhee the $800 as soon as I could get it from these men; the settlement was in this way: I gave McPhee $500 on account of the Odd Fellows’ money that had come from Dyer and Murrin’s hands, and promised to send him the remaining $800 that was coming to him in a few days. I kept $80 that was to be mine out of it, and executed my notes to him, for all the rest that I owed him, leaving-out $800. Don’t remember being at MacNamara’s that, night. I won’t say I was not.
    Re-examined:
    When plaintiff’s counsel asked me if I did not write to McPhee promising to draw money from Marks & Meyers, and I answered, “No,” I misunderstood the question; I thought he meant .the $200. When we made the settlement, I paying McPhee $500, I was to pay him $200 which I was to draw from Philips, and I thought that was the $200 he meant.
    Ee-cross-examined:
    Q. Didn’t I expressly ask you whether you had written McPhee a couple of weeks before this transaction that you expected to get money from Marks & Meyers, and didn’t you say you had not ?
    A. I didn’t understand it in that way; I misunderstood your question, that is all.
    Defendant rests.
    M. D. CurriGtAN, sworn, for plaintiff, in rebuttal:
    Eemember having a talk with O’Connor on Monday following, in relation to this transaction.
    Q. I will ask you if, in that conversation, O’Connor used this language %
    
    Defendants object, because not proper rebutting evidence.
    Objection overruled. Defendants except.
    Q. In talking to you, did he not say that “ McPhee did not go away as badly off as some people have thought he did, as I (meaning O’Connor) raised $500 outside of the Odd Fellows’ transaction, and paid it to him, and, for God’s sake, don’t mention it to Dyer or Murrin ? ”
    A. He did positively.
    C. D. McPhee, sworn for plaintiff, in rebuttal:
    Q. What was said in the settlement of the $800 that was in controversy, between you and him, growing out of the transaction of the previous night ?
    A. The $800 was promised to be sent down on the Wednesday or Thursday following. I never received it to this day.
    Met O’Connor about 11 o’clock on this Saturday night. He told me Murrin had the money; that it was only a joke, and that as soon as he could get it from Murrin he would send it to me, or, if I would wait over till Monday, he would get it for me. He said he did not have a cent of it; if he did, he would give it to me then and let'me. go home Sunday morning; he promised to send me the. entire amount, $800.
    Mr. C. W. Weight, for appellants.
    Messrs. Maekham, Patterson and Thomas, for appellee.
   Elbeet, O. J.

Of the nineteen assignments of error, we will notice in their order those we regard as worthy of attention.

(1) The plaintiff’s demurrer to the amended answer was properly sustained.

The executed promise of the plaintiff McPhee to secure the acceptance by the Odd Fellows’ lodge of another bond, executed by himself and others, in lieu of the bond' upon which the defendants were sureties, and the delivery of this bond to defendants, at the instance and request of the defendant, was a sufficient consideration to support the promise of the defendants to pay McPhee the. $880 sued for.

That no benefit accrued to the defendants by the surrender of their bond was not a good defense, as showing a want of consideration. Benefit to the promisor is not essential to a valid consideration.

The law distinguishes between two classes of cases: Those where the consideration is a benefit to him who makes the promise; and those in which it is an injury to him who receives the promise. “It is a perfectly well settled rule,” says Mr. Parsons, “that if a benefit accrues to him who makes the promise, or if any loss or disadvantage accrues to him to whom it is made, and accrues at the request or on the motion of the promisor, although without benefit to the promisor, in either case the consideration is sufficient to sustain assumpsit.”

1 Par. Con. *431.

In Clark v. Sigourney, 17 Conn. 517, it is said: “Any act done by the promisee at the request of the promisor, by which the former sustains any loss, trouble or inconvenience, constitutes a sufficient consideration for a promise, although the latter obtains no advantage therefrom; and in respect to the extent of such loss, trouble or inconvenience, it is immaterial that it is of the most trifling description, provided it be not utterly worthless in fact and in law.”

The facts of the above case strongly illustrate the principle. The defendant was sued on his promissory note for $300. It was found that the consideration of the note was a deed delivered, which was a release, without covenants, of all the right and title of the makers in the premises described, and that the makers of the deed had no interest or right whatsoever in the premises to release. The court say: “That the execution and delivery of the deed were at the request of the defendant, and were attended with at least some actual trouble and inconvenience, is, in our opinion, a sufficient consideration to support the promises declared on.”

It was not for the plain tiff to inquire why the defendants desired to take up their bond, or whether the defendants were liable on their bond under the lien laws of Wyoming. It is sufficient that the defendants did wish to get possession of their bond; that they treated with the plaintiff to that end, and that, in pursuance of the agreement, the plaintiff incurred the expense and trouble of negotiating with the lodge for the surrender of the bond of the defendants; secured its surrender by executing a new bond signed by himself and others, and delivered the bond of the defendants to them as requested. Nor does it appear by the amendment that no liabilities or hazards were assumed by the plaintiff by the terms of the bond substi-' tuted for the bond of the defendants. We think the objections to the amended answer were properly sustained.

(2) The denial of the defendants” motion to amend their answer rested in the sound discretion of the court. Where motions are addressed to the discretion of the court, nothing short of a plain and arbitrary abuse of right will justify an appellate court in reversing such discretionary power.” Byers et al. v. McPhee, 4 Col. 204. The action had been pending over two years. The defendants had already twice amended their answer; the issues had been made up for several months; the plaintiff had presumably prepared for trial with reference to the issues as they stood, and the motion to amend was not made until the day of trial. The amendment was a denial of a material allegation of the complaint, which up to this time had stood admitted by the pleadings, and to support which the plaintiff cannot be presumed to have made any preparations. In view of the laches of the defendants and the probable hardships to the plaintiff, it cannot be said that the discretion of the court was not properly exercised.

(3) The letter of O’Connor was admissible as tending to impeach his testimony touching the $500, which it was claimed was part of the $800 sued for.

(4) The first instruction related to the condition of the pleadings, and stated the allegations of fact which thereby stood admitted, and which the jury were instructed to take as true. The allegation of the complaint, that the Odd Fellows had paid over to the defendants $880, to be disbursed by them, was denied by the answer, and it was error to instruct the jury that it was admitted by the pleadings.

An examination of the evidence, however, shows that the fact alleged was not contested; although denied by the answer, it was sufficiently established by the evidence; there was no conflict of testimony, nor was there any contention on this point. That the money came from the society of Odd Fellows appears to have been conceded; the contention was touching the payment. This being the fact, it is clear that the defendants were not prejudiced by the error.

(5) To the remaining instructions given by the court we find no substantial objection. They correctly stated the law upon the facts.

Upon the merits there is but little or no room to doubt the justice of the verdict. If, as McPhee testifies, Dyer handed the money to O’Connor instead of McPhee, there clearly was no payment to McPhee. If, as Dyer testifies, he laid the money on the table, it still does not appear to have come under the control or dominion of McPhee, as O’Connor undoubtedly took possession of it, and left the room in company with the defendant Murrin. If, as O’Connor testifies, the money was paid to him in pursuance of an understanding had with Dyer the night before, then there was not only no payment, but a conspiracy to defraud McPhee. ^

The judgment of the court below is affirmed.

Affirmed.  