If the city had proceeded with the trial in this action under its original answer, in which it was alleged that the contractor had been duly notified under the contract to make repairs, it would have been entitled to go to the jury on the theory which was adopted in the action by the same plaintiff against the city, known as No. 2, in which a verdict was rendered for the city; but counsel for the city upon the trial applied for and obtained leave to amend the answer by omitting the allegation that the contractor was duly notified and substituting in place thereof an allegation that its assignee was duly notified to make repairs. Under the answer as thus amended it was incumbent on the defendant to show that the Barber Asphalt Paving Company was the assignee of the contractor, and in this it failed. The court, therefore, properly directed a verdict in favor of the plaintiff for the amount owing to the contractor.
Judgment and order affirmed, with costs.