The exception to the court’s ruling excluding Baisley’s evidence in relation to the non-existence of the partnership, cannot be sustained. The answer, by not denying, admitted the sale and delivery of the goods to the defendants, as well as their value. The issue taken, therefore, on the allegation of partnership between Silver and Baisley at the time of the sale and delivery of the goods, was entirely immaterial. That allegation might have been stricken from the complaint, and a good cause of action would have remained. This stood confessed by the answer; and the question of partnership, no difference what view the jury might have taken of it, could not have affected or changed the result; the plaintiff would still have been entitled to recover on the pleadings as they stood. (Whitwell v. Thomas, 9 Cal. 499; Hunter v. Martin, 57 Cal. 365; Wood v. Henry, 40 N. Y. 124; Loper v. Welch, 3 Duer, 644; Millard v. Thorn, 56 N. Y. 402.)
*574These authorities also dispose of the other exception. The plaintiff’s cause of action being admitted by the answer, the court could not have done otherwise than to direct a verdict for the plaintiff. There was nothing for the. jury to find. "Under the state of the pleadings, the plaintiff was entitled to a judgment as a legal right which the court could not have refused.
The defendant also suggested on the argument his right to amend, but that question is not before us, no exception having been taken to the ruling of the trial court. "We have constantly encouraged the practice of allowing amendments liberally, so as to enable the parties while in court to have their differences settled and determined; but the allowance of such amendments, and on what terms, are wholly with the trial court, subject to review here in case such discretion is abused; but it would be going beyond all precedent to reverse the judgment of the court below for refusing to permit -an amendment, when the proposed amendment was not made out and submitted to the court, and when no exception was taken to the court’s ruling denying it.
The judgment appealed from must therefore be affirmed.