This action is really for money had and received. Trial before the court without a jury, issues found for defendant and plaintiff has appealed.
*603The petition alleges that plaintiff wás the owner of a one-eighth interest in a mining lease on the southeast quarter of the southwest quarter, section 28, township 28, range 32, in Jasper county and that defendant and others owned the other seven-eighths. That 'ten acrés of said land, to-wit: the southeast ten acres of the tract was sold for $7512.74, and this sum was paid to defendant Boggess who had refused to pay plaintiff his one-eighth part thereof to- which as part owner he was entitled.. The answer alleged as a .defense that the owners of the land, except plaintiff, wanted to prospect on this ten acres to see if mineral could be developed and it be made producing land, but plaintiff refused to agree to do so, or to pay any part of the expense incident to the work. Thereupon the interested parties subleased from plaintiff for a consideration his one-eighth interest in said ten acres by oral agreement, and in pursuance thereto took possession thereof, and spent large sums of money prospecting, and after having discovered mineral sold a mining license upon this ten acres to the Gibson Mining Company, and that the money received was in payment for this license. That plaintiff still retained his interest in the lease and that the Gibson Mining Company was to pay a royalty to the owners of the lease in addition to what it had paid fór the mining license and the plaintiff, with full knowledge ■of all the facts, had received and accepted his share of said royalty from said Gibson Mining Company.
After the evidence was all in the defendant filed an amended answer in which all the facts alleged in the first answer were reiterated, and in addition thereto, it was alleged that the 40 acres covered by the lease had been divided in lots and mining rules and regulations adopted under authority of which parties desiring to mine on said lots could register by consent of the property owners; that after having made the oral agreement with plaintiff, as before alleged, defendant and his *604associates bad registered and complied with the aforesaid rules and regulations.
The plaintiff filed a motion to strike out this last amended answer on the ground that it changed the defense. The court overruled this motion and permitted the amendment to be made and this is now assigned as error.
The allowing of such amendments to pleadings as do not change the character of the cause of action or defense is largely in the discretion of the court and should be permitted when the ends of justice so require. [Statutes 1909, section 1848.] We do not think the amendment in this case changed the defense. The defense was that plaintiff had agreed with defendant and his associates that they might prospect upon the • southeast ten acres of the forty upon their own account and reap whatever rewards might come to them, by ■ reason of doing so. The allegation as to this agreement was not changed by the amendment, but it was left as in the first pleading and an addition was made to it alleging that certain mining rules and regulations had been adopted and that defendant and his associates had complied with those rules and regulations. In our judgment the addition of this allegation did not change the substantial defense and'the court did not abuse its discretion in permitting the amendment.
The only other question for us to determine is whether or not the judgment is sustained by the testimony. Defendant’s testimony tended to prove that he had an agreement with the plaintiff such as he had alleged in his amended answer. The testimony on the part of plaintiff tended to prove that the agreement was not as alleged in the answer, but that the agreement was that defendant and his associates might prospect on the southeast ten acres at their own expense and if paying mineral was discovered they should erect a mill upon the land, and that a mill had not been erected.
*605The issue raised by the testimony of the parties, plaintiff and defendant, was purely one of fact, and there Avas substantial testimony upon both sides of the issue. The court whose duty it was to weigh the testimony found in defendant’s favor, and under these circumstances, his finding is binding upon us. The judgment Avill be affirmed.
All concur.