(dissenting):
It is proposed to reverse this judgment solely upon the ground that the referee did not have the power to permit the complaint to be amended so as to conform it to the facts proved, by inserting therein an allegation that “At the time when the plaintiff promised to pay $7,500 to the defendant Edgar Lockwood, the plaintiff and Edgar Lockwood intended that said promise be a promise to pay $7,500, part of any debt which John II. Waydell, Anderson Way-dell and Frederic Waydell, a partnership doing business under the firm name of Waydell & Co., owed the other defendants, and plaintiff further alleges, that on November 11th, 1893, any debt which said Waydell & Co. owed said other defendants was paid in full, and that the answer to the second amended complaint- herein be deemed amended so as to deny each and every of the aforesaid allegations, or in such other form as defendants may be advised.”
The complaint before the amendment was allowed alleged: “ That at the time when the plaintiff herein signed the alleged bond and mortgage herein, the plaintiff herein and the said Edgar Lockwood both believed that the said Waydell & Co. were indebted in a sum of money to the said Munroe & Co., Kleinwort, Sons & Co., and the Canadian Bank of Commerce, as guarantors of letters of credit issued by the said Munroe & Co., Kleinwort, Sons & Co. and the Canadian Bank of Commerce, to Marcial & Co.; that the said Waydell &. Co. were not at the time the said alleged bond and mortgage was signed as aforesaid, nor at any other time, indebted in any sum whatever to the said Munroe & Co., Kleinwort, Sons & Co., and Canadian Bank of Commerce, or any or either of them, as guarantors or otherwise, of the said letters of credit or any or either of them, or in any other manner; that the said Waydell & Co. have never been indebted to either Munroe & Co., Kleinwort, Sons & Co., the Canadian Bank of Commerce, in any sum or amount of money whatever.”
The action was brought to procure the cancellation of a bond and mortgage. The judgment prayed for was that the bond and mortgage be canceled and that Lockwood, as trustee, be directed to exe*304cute and deliver to the: plaintiff .an instrument satisfying and discharging the- same of record. Upon the trial it appeared from evidence introduced by the defendants that,, when the instruments were given, Waydell & Oo. was indebted in the sum of $7,500 to the parties for whose benefit they were given, .but this evidence, according to the findings of the referee, also established that after the bond and mortgage'were given and before the commencement of this action this indebtedness had in fact been fully paid. If ■ the referee was right in his conclusion, then the plaintiff in equity was, entitled to have the instruments' satisfied of record. The evidence" establishing the payment having been introduced by the defendants themselves, I do not think they are in a position to complain because the referee permitted the complaint to be amended to conform it to the facts proved, especially in view of the fact that, after the amendment had been made; they were afforded an opportunity to introduce further evidence, if they so desired, which might "tend , to '. -explain, modify Or destroy the evidence theretofore given by them -on the subject of payment.
The Code óf Civil Procedure requires that the allegations of a pleading must he liberally construed with a view of substantial justice .betwéen the parties (§ 519), and if necessary in furtherance of justice the court (and it is conceded in the prevailing, opinion that the referee had the same power) may upon the trial, or at any other stage of- the action, amend a pleading by inserting therein an allegation material to the case,, or, where the amendment does not change substantially the claim or defense, by conforming the pleadings to the facts proved. (§ 723.)
The issue' both before and after the amendment was substantially the same. It was whether the bond and mortgage were valid and subsisting obligations. The plaintiff asserted that they were not, because when given Waydell & Co. were not then or at any time thereafter indebted to the. defendants. The defendants asserted that, they were, and they established the indebtedness when the bond and mortgage were, given, but in doing that they also established that it thereafter, and prior to the commencement 'of the • action, had been paid. When the indebtedness was -extinguished the purpose for which the bond and mortgage were given had been ■accomplished, and they then ceased to be binding obligations, and *305the plaintiff was legally entitled to have them given Up and canceled. The evidence to establish the payment, as I have said, was introduced by the defendants. They, therefore, could not have been misled or surprised by it.
.For these reasons I am unable to 'concur in the opinion of Mi’. ■Justice, Rumsey.
Judgment reversed, new trial ordered before another referee, •costs to appellants to abide event.