i fkato-cohdeuce consul ered. I. The evidence was taken by a commissioner during the months of November and December, 1878, and Jaimary anc^ February, 1879. On the 23d day June> 1879, the defendant filed an amended and substituted answer, and also an answer to the petition of Older and Owens, alleging that in October, 1878, she placed in the hands of Jamison $2,000 to be loaned out, and that the notes executed and transferred to her, and the deed executed to her, were in consideration of this sum and interest.
On the 26th day of June, 1879, the evidence of the parties was filed, and on the same day the cause was submitted to the court on the pleadings and evidence, and written arguments to be furnished the court. On the 30th day of August, 1879, the plaintiff, at the time of filing his reply, filed a motion to strike from the files the amended and substituted answer, on the ground that it was filed without leave of the court, after the evidence was taken, and sets up new and affirmative matter not before pleaded. The record does not show that any action was taken upon this motion. The appellant insists that it would have been error to overrule the motion, and that' if it were sustained the evidence introduced on behalf *311of defendant would not be relevant to the issue. The record does not show that the answer was filed without leave. The only material affirmative matter which it sets up is the advancing of the money to Jamison. If plaintiff, because of this amendment, was not ready to go to trial, he should have moved for a continuance. The court should have overruled the motion to strike from the files the amended answer, if he did not do so.
II. It is claimed by the plaintiff that the defendant procured the notes and the conveyance from Jamison without any consideration, whilst he was incompetent to transact business from his excessive intemperance. The evidence clearly shows that Jamison, during several of the last years of his life, drank to great excess, and that when under the influence of liquor he was not competent to transact business. It is not, however, shown that he was intoxicated at the time of the transaction in question. The evidence shows that he was a lawyer of more than usual ability, and that he was intrusted with and managed a large amount of business.
As to the consideration for the notes and conveyance, there is great conflict in the testimony. ¥e, however, unite in the opinion that the preponderance of the evidence establishes the fact that the defendant placed in his hands to be loaned for her the sum of $2,000, and that the consideration for the notes and conveyance was this sum and interest. The deceased on various occasions admitted -having received this sum from the defendant. The testimony is conflicting, and not susceptible of being harmonized. An extended review of it would subserve no useful purpose. Each member of the court has separately read the evidence, and reached the conclusion that it preponderates in favor of the decree below.
Affirmed.