(dissenting):
I dissent.' As I understand the- case, the-plaintiff is willing to “ abide, by the result.” On. the other hand, I see no' reason why the defendant should have a second trial of an issue not raised by its answer, -and which issue cannot he retried without an .amendment of the pleading.
Woodward, J., concurred.
Judgment reversed and new trial granted, costs to abide the event.