*45ON PETITION EOR REHEARING.
Per Curiam.The able and exhaustive argument presented by appellants upon this petition for a rehearing has induced a further review of the decision heretofore rendered, and the pleadings and evidence in the case. As a result of such review, we are fully persuaded that the judgment of the district court, less the amount directed by this court to be deducted as interest, is not only fully warranted by the pleadings and evidence, but that it does substantial justice between the parties.
In the first instance it was insisted that the allegata and probata do not correspond. The variance relied upon by counsel is more specifically pointed out as follows: Plaintiff by his complaint alleges that he was to procure a purchaser for the eight properties described therein. The proof shows that plaintiff procured a purchaser for seven only of the properties, therefore he cannot recover under this complaint.
Aside from the admission of the answer as to the sale to Green, we again call attention to the following stipulation entered into at the trial: “ It is admitted that the properties described in the complaint were sold to Willard R. Green by the defendants, and the deeds to said property were duly placed of record with the recorder of deeds of Lake county, Colorado.” The properties described in the complaint to which reference is made in this stipulation are, without doubt, the eight properties for which plaintiff under his contract undertook to procure a purchaser. Plaintiffs in error argue that as by the stipulation it is admitted that the deeds to said properties were recorded in Lake county, while as a matter of fact the deed to one of the properties was not so recorded, as was well known to all parties at the time of the trial, it is evident that the stipulation refers to seven only of the eight properties described in the complaint, and that as a matter of fact the eighth property (the Weil lode) was not sold. In our judgment this argument is overthrown by the positive terms of the stipulation.
*46It is unnecessary to follow appellants in their argument based upon the statement preceding the opinion to the effect that the defendants sought by the amended answer to change the issues, as nothing whatever in the opinion is predicated upon this statement. The amended answer has been considered and treated by the court throughout as a proper pleading. By so doing, we must not, however, be understood as sanctioning a practice which permits a document not set out in the complaint to he made a part of an answer by a simple reference thereto, as attempted by the amended answer.
The reference in the former opinion to parcels one and two is perhaps not strictly accurate, and it will be stricken out; otherwise, such opinion is adhered to.
Rehearing denied.