On Petition for Rehearing.
Upon petition for rehearing counsel, for the first time, make the claim that certain portions of the answer, which upon motion were stricken, plead matters in mitigation of damages, for which reason they urge that the testimony upon this subject was competent. The case was disposed of upon the record as presented. Whether the matters referred to were sufficient to constitute such a plea was neither argued nor considered. No cross assignments of error were presented concerning the court’s ruling in this respect. If they were sufficient for the purposes for which it is claimed .they were intended (concerning which we express no opinion), the proper way to have had the question determined was by cross assignments of error. The admission of evidence is controlled by the issues as made by the pleadings, and not as to what might have been proper had the pleadings been different than they were when the issues are finally made up. The opinion allows both parties to amend their pleadings. This will permit the plaintiff in error to properly plead and present competent evidence upon this subject.
The petition for rehearing is denied.