PAXTON et al.
Judgment affirmed as modified.
Snell & Wilmer, of Phoenix, for appellants.
Herbert Mallamo, of Phoenix, for appellee. Leslie Parry, of Phoenix, of counsel.
Phelps, Justice. Udall, C. J., and Stanford, De Concini and La Prade, JJ., concur.
[72 Ariz. 380] In granting the motion for rehearing in this case we are adopting the statement of facts in our original opinion, found in 72 Ariz. 240, 233 P.2d 450, and reaffirm the porton thereof adjudicating the issues alleged in the first cause of action between McDonald and Industrial Research, Inc. We are persuaded, however, that we misapprehended the action of the trial judge in denying appellee's motion to amend the complaint to conform with the evidence but, notwithstanding, found in favor of appellee on the issue sought to be incorporated in the complaint by amendment.
The court, twice during the trial, denied appellee's motion to amend his complaint to conform with the evidence to include an allegation that the spark plug type machine invented by Paxton was a partnership asset under the agreement between Paxton and McDonald.
The first motion was denied upon the objection of appellant, upon the ground, in substance, that depositions had been taken within ten days previous to the trial and counsel for appellee had not exercised due diligence with respect to such amendment.
The second motion to amend was denied in the following language: "At this time I wouldn't permit it. I am not saying for sure I won't some time, but not now." And at the close of all the evidence appellee again renewed his motion to amend upon the ground "* * * that the proof in the matter shows conclusively that it was the intention of the parties, Paxton and McDonald, to include other
machines in this invention, and that whether or not other machines were included --" The court, interrupting, said: "Of course that is something that is on an issue the jury doesn't have to decide anyway. That isn't a matter that we are submitting to the jury anyhow. I will take that matter under advisement. We won't change the issues on the first cause of action. I am not saying I won't permit you to on the second, if I try the second cause of action. So, with that situation there is nothing to submit except the partnership. * * *"
When the agreement assigning the spark plug machine to Industrial Research, Inc., was offered counsel for appellants objected that it was immaterial but might properly have some materiality on the ...