1, 2. The court cannot take judicial notice of what the term ‘ ‘ equipment ’ ’ includes. Hence it was competent for the parties to show the situation existing at the time they contracted, and to receive testimony, not to contradict, but to interpret the term under consideration.
3. There was testimony which, if believed by the jury, showed that Meyer built the theater and installed the electrical appliances which the defendants claim plaintiff agreed to sell to them. He contends that all of them were built into the building by the original owner as and when it was erected and to him they belonged as fixtures; that when the parties were examining the plant with a view of purchasing, he explained to them that he did not own them or the piano, but that he owned certain scenery and other articles used in the conduct of the show house. They, of course, dispute this and contend that the contract included not only what he represented in his testimony that he owned, but also all other things that could in any way be counted as equipment necessary for the conduct of a theater. This matter was properly submitted to the jury and the decision as embodied in the verdict was against the defendants.
4. It is necessary to analyze the new matter in the reply to determine whether or not there is a departure from the original cause of action, or whether a new contract was formed, so that the plaintiff’s only rem*393edy would be an action to recover as for a breach of the new agreement. As stated above, the new matter of the amended reply recites that defendants took possession of the property and that Meyer had instituted an action against the plaintiff to recover rent under the original lease. It then states in effect that during the pendency of the action of Meyer against Bligh the defendants requested the parties litigant to postpone the same in order to enable them, the defendants here, to arrange with certain third parties whereby the former would be able to pay the plaintiff $2,000 due upon the purchase price of the theater, equipment, etc. This is not an averment that the defendants promised anything or agreed to perform any new arrangement. It merely amounts to a statement that they importuned the litigants for delay, to see if they could bring about a compromise. In substance it is that they intervened and got leave to imparl. . The next paragraph is to the effect that the plaintiff accepted said proposition “tentatively” and agreed at the time to take $2,000 in full payment of the amount due him, upon condition that it should be paid immediately. Substantially this is merely a statement that the plaintiff made an offer to the defendants, but it nowhere appears in the reply that the latter accepted the offer. Consequently, no new or different contract resulted. Taken by its four corners, the new matter in the reply is no more than a declaration that there were negotiations looking to a new agreement, but that they never ripened into a settled stipulation. The reply is not at variance with the complaint and does not constitute a departure.
In the absence of any exceptions to the charge of the court or any assignment of error on the admission of evidence, we must presume that the issue was fairly tried and submitted to the jury. Hence we must abide *394by its verdict, with the result that the judgment is affirmed.
Affirmed.
McBride, C. J., and Benson and Harris, JJ., concur.Denied March 11, 1919.