I concur in the order. This case was tried several years ago, and a judgment was rendered in favor of the plaintiff, which was reversed because of errors of law. The case was remanded and set for trial on the merits. On the day of trial, the defendant, for the first time, made a motion for judgment on the pleadings, which was granted; but in granting the motion the court *Page 18 was influenced entirely by matters dehors the pleadings. From the judgment thus rendered, the plaintiff took an appeal. Upon the argument in this court, the defendant not only insists upon the contention put forth in the lower court, but urges for the first time that the complaint does not state a cause of action because of certain allegations relative to the Daniel notes.
I concur in the order of reversal, for the reason that the lower court in granting the motion took into consideration matters dehors the pleadings, something it had no right to do on a motion of the character mentioned.
As to the Daniel matter, the complaint alleges that, pursuant to an oral modification of the original agreement, the defendant accepted certain notes for collection and agreed to credit the amounts collected upon the indebtedness. This constituted an executed contract. It is now too late to urge that there could be no oral modification of the original written contract.
I think the case should be remanded for trial upon the merits according to the principles of equity governing such matters.