I dissent. I think that, assuming that- the court would have the power upon the trial to allow such an amendment to the complaint as was allowed in this case,, the defendants were entitled to have the amended Complaint served to which they had a right to answer. The action was based upon the completion of a contract, with the exception of certain specified items. That was denied by the defendants. Upon the trial it appeared that the contract had not been completed in other particulars than those specified; and the plaintiff was allowed to amend the complaint which substituted for the completion of the contract as alleged a waiver of its completion in certain important particulars. Under those circumstances, before the defendants could be called upon to try the case, they were entitled to have the complaint upon which the cause of action was based served upon them, with the right to answer and properly prepare to try the issues then presented.
For this reason I think the judgment should be reversed..