dissenting:
I, also, dissent from the majority opinion. I fully agree with what is said, to the effect that the withdrawal of the offer by Bowles to sell to the county was wrongful. That act is what caused the litigation. By Bowles, after the offer was withdrawn, taking possession of the property and claiming it as his, the Skeltons were placed in the position where they were compelled to take steps to protect their rights. The fact that had Bowles not with*332drawn Ms offer, the property would have been sold to the county, and he would thus have received Ms money, and the Skeltons the difference between what they were owing’ him and the sum which the county would have paid, is made the basis of the theory upon which the majority opinion proceeds, namely, that thereby he refused a tender of the amount due him the day the offer was withdrawn. If this is correct, then interest ceased down to the date the judgment now directed is entered, which would eliminate the interest on the judgment this court now holds should have been entered by Judge Lewis. Mr. Justice Hill discusses this question fully in his opinion, and nothing can be added here which would demonstrate any more clearly than what he has said, that accepting the theory of a tender, it is illogical to add interest in the sum of more than eleven thousand dollars; but I do not agree that the case should be determined upon the theory of a tender.
When the case was first brought to this court, it was considered, among other purposes, as one for damages; that is, the Skeltons, according to their pleadings, and any uncertainties and ambiguities therein which were cleared by the answer of Bowles, sought to recover damages they had sustained by Bowles withdrawing the offer to sell to the county, and other damages growing out of the wrongful act of Bowles in taking possession of the property. When the case thereafter reached the trial court, the defendants were permitted to amend their answer, the purpose of which was to eliminate the question of damages as the result of Bowles withdrawing the offer. This amendment changed the issue on the question of the value of the property.
We said, in 32 Colo., that whether or not the answer could be amended was a matter for'the trial court to consider and determine; but this did not empower the trial court to permit an answer which was wholly unauthor*333ized. In the original answer it was unequivocally stated that the value of the property did not exceed the sum of $20,000. By the amended answer it was alleged that its market value at the time the offer was withdrawn was equal to the sum of $35,000, and that since that time it has increased to the sum of $50,000. To support the application for leave to file this answer, an affidavit of Mr. Bowles was filed, which stated, in substance, that at the time of verifying the original answer, his attention was not called to the market value of the property, including the water rights appurtenant thereto, and that his statement as to the value in his original answer related only to its actual value. By this affidavit it was sought to show that, defendant did not originally intend to state the market value of the premises. The defendant was a farmer; had resided in the vicinity of the premises about thirty years, and presumably was familiar with their then value, when his original answer was filed, which, when called in question, could only be determined by their market value. This was the value which the defendant intended to, and did, state in'his original answer, although the precise expression, “market value,” was not employed.
A motion to amend an answer based solely upon the ground that the defendant did not mean to be understood to state what he stated in his original answer, which, from the latter pleading, it is clear is not the case, should be denied. In mere matters of form or mistakes' of dates, or verbal inaccuracies, courts should be indulgent in permitting amendments; but when application is made to amend an answer with- respect to a material fact, or to essentially change the grounds taken in the original answer, they require very cogent circumstances of a nature to repel the notion of any attempt to evade the justice of the case, or to set up new defenses to support the application to amend; otherwise, it will be denied. This *334rule is particularly applicable when a defendant, by his answer under oath, makes a material allegation on an issue between the parties upon which the case was originally tried, which he seeks to change after anew trial is granted by the supreme court, and the cause remanded for retrial upon that issue.
It was, also, error to permit an amended answer to be filed, alleging that at the time it was filed the property involved was worth the sum of $50,000. The rights of the parties on the question of damages for the withdrawal of the offer to sell to the county were fixed by its value at the time the offer was withdrawn, and could not be changed by subsequent increase or decrease of such value.
The case was tried upon the amended answer, which should not have been allowed, and for this reason, as appears from the remarks of the trial judge, the question of damages in the particular under consideration, was eliminated, when it should have been re-tried on the issue on this subject, as made by the pleadings originally filed. From these pleadings the testimony which counsel for defendant have treated as being here for consideration, and from the admissions they have made in their briefs, it is clear the Skeltons were damaged in the sum of $15,000 by the withdrawal of the offer to sell to the county, that being the difference between the market value the day that offer was withdrawn, and the price the county would have paid had Mr. Bowles permitted his offer to stand. Had the case been tried upon this theory, as it should have been, it is manifest the judgment would have been much more favorable to the Skeltons.
Other items of damages were, also, involved, which were not correctly determined by the trial court. To enter into a consideration of these items in detail can serve no useful purpose. From the testimony, in my judgment, had the Skeltons been allowed the damages for the withdrawal of the offer to the county, and to which they were *335clearly entitled, and other items in their favor which the testimony establishes, after charging them with the amount of their indebtedness to Bowles, and items to which he and his successors are entitled, the judgment against the Skeltons at this time should only be in the sum of $5,771.40.