We shall consider but two of the many assignments of error, as they seem to furnish the principal grounds for complaint; and under our view of the law, the plaintiff is entitled to a new trial.
First. Did the court err in permitting the defendant} to make his amendments to his answer after the plaintiff had rested his case, and then requiring the plaintiff to proceed to> trial without time to prepare his defense thereto?
Second. Did the court err in its instructions to the jury?
Both of these questions must be answered in the affirmative. Our courts have been extremely lenient in regard to permitting amendments to pleadings in the furtherance of justice. Section 139 of the Civil Code (¶4222, Gen. Stat. 1889) reads as follows :
“The court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process or proceeding by adding or striking out the name of any party, or correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other alie*310gations material to the case, or conform the pleading or proceeding to the facts proved, when such amendment does not change substantially the claim or defense ; and when any proceeding fails to conform, in any respect, to the provisions of this Code, the court may permit the same to be made conformable thereto by amendment.”
We do not think that these amendments come within that section, as it does change substantially the defense. At any rate, the court should have allowed the plaintiff a reasonable time in which to prepare to meet the new claim. Under the circumstances of this case, we are of the opinion that the plaintiff should have been allowed reasonable time.
The principal question in this case, as tried by the court below, was in relation to the respective rights and claims of the parties for damages on account of the burning of the house. The case of Whilaker v. Hawley ( 25 Kan. 674) was relied upon by the defendant in error and the court as decisive of this branch of the case. But that case and this are very dissimilar. The court in that case raised the question — but did not settle it — as to whether the doctrine of the old common law, that upon a covenant to pay rent in a lease of lands and buildings for a term of years, the rent may be recovered notwithstanding the total destruction by accidental fire of the buildings, is in force in this State. But admitting that it is not, still we fail to find any theory under which the defendant in this case was entitled to any rebate on account of such accidental destruction. In fact the reasoning in that case is wholly against the defendant’s right in this case to recover therefor. The principle laid down in that case, as stated by Mr. Justice Brewer in the second section of the syllabus, is as follows :
“Where by a single instrument real and personal *311property are leased for a gross rental, and the personalty is a substantial part of the leased property, upon a total destruction by accidental fire the lessee is entitled to an abatement of the rent equal to the proportionate rental value of the personalty.”
In the case at bar, the only reference to the house in controversy, which was not personalty, was as follows: “Said A. W. Vale hereby agrees to repair the tenant house — now on said premises, and now occupied by ¥m. Spratford — for the use of said George L. Trader.” This the parties agree was done, and, taking the whole contract, and the facts and circumstances as developed by the evidence, it is impossible to say that the house, should we consider it as personal property, was a substantial part of the leased property for which the rent was paid. The consideration for the lease was one-half the corn raised on the premises, which Mr. Trader was to receive for working the land, and the house was only an incidental part of the transaction. It is impossible to say how much, if anything, it added to the rental value of the land, or to determine how much of the crop raised on the cultivated land could have been secured by the landlord were no house on the premises. The damage resulting from the destruction of the house was too conjectural and indefinite to authorize a recovery therefor.
The judgment of the court below will be reversed and a new trial ordered.