On Petition for Rehearing.
Mr. Justice Gabbertdelivered the opinion of the court:
In their brief for rehearing counsel for plaintiff contend, that under the pleadings the question of his consent to the changes in the contract was not presented because defendant did not plead a substitute agreement or the assent of plaintiff to the erasures. By answer, the defendant denied the contract set out in the complaint, and pleaded haec verba, the contract upon which it relied. Evidence to establish a contract need not be pleaded. Defendant having specifically set up the contract upon which it relied, could show that this instrument was the *22one between the parties by assent to changes in the contract relied upon by plaintiff after it was executed, for the reason that this was merely testimony to establish the contract pleaded by defendant.
From the testimony the Wyoming water is in no sense involved. Plaintiff’s rights are confined to the appropriations he transferred and as defined in his contract. His contract does not purport to give him any other interest. It is therefore wholly immaterial from what source or by what means additional water is secured by defendant or carried through its ditch, so long as by so doing plaintiff’s rights under his contract are not infringed, or defendant does not refuse to comply with the terms and conditions of that contract to his damage.
We have determined the case on the record before us, but this does not preclude either party on retrial, from introducing competent testimony which might establish facts different from those now presented.
The petition for rehearing is denied.
Rehearing denied.
Chiep Justice Musses and Mr. Justice Hill concur.