The plaintiff in error was the defendant in the trial court and defendant in error' was plaintiff and hereafter they will be referred to as they there appeared.
The plaintiff commenced this replevin action in the district court of Oklahoma County, Oklahoma, wherein he sought to replevy certain described livestock and to recover judgment on two notes, one for $2,400, bearing 6'% interest from the 6th day of June, 1947, and ten percent attorneys’ fees, and one for $3,950, bearing 6% interest from September 12, 1947, and ten percent attorneys’ fees.
A Writ of Replevin describing certain cattle was served on the defendants, Lee McNutt and C. C. Cooke, January 23, 1948, and returned by the sheriff of Oklahoma County, Oklahoma with the notation, “I' also went to- the place where the within described cows are supposed to be kept, where I found approximately 60 head of cows but could not identify them as the cows described in this Writ, and the same cows as described in this Writ were not delivered to the plaintiff herein, (Signed) Dick Strain, Sheriff, by J. W. Brown, Dep-' uty Sheriff.”
C. C. Cooke'filed a separate answer tp plaintiff’s first and second causes of action, alleging payment of said notes and denying that any cattle covered by any mortgages held by the' plaintiff had come into his possession by virtue of any trans-action- with thé defendant Lee McNutt. He alleged that the chattel mortgagé- purportedly given to secure, payment of the note of September 12, 1947, was not filed-for record until January 3, 1948, and that if the court should find and determine that any cattle that came into the possession of C. C. Cooke were -in fact cattle covered, by the mortgage which was filed for record January 3, 1948, that in that event, such cattle wer.e purchased by Cooke in good faith, without notice, and prior to January 3, 1948, when said mortgage was filed for record and that' the title of the defendant Cooke was therefore superior to any right, title -or interest, if: any,'which the plaintiff might have in said cattle.
Defendant asked that the court require an accounting between 'the plaintiff, S. E. Townley, and the defendant, Lee McNutt, and for all other proper relief.
Defendant Cooke also filed a cross.petition against plaintiff S. E. Townley seeking' judgment for. $1,930.65, moneys alleged to be due from Townley to Cooke.
The plaintiff filed a reply and answer in the nature -of a general denial and an amendment to his petition. Upon these issues, trial was had to a jury which returned-a verdict fixing plaintiff’s recovery on his petition at $5,447.95, and a verdict for the defendant Cooke on his cross petition for $1,028.60.
The defendant Cooke’s motion and supplemental motion for a new'trial were overruled' and -the trial' court rendered judgment in accordance with the verdict of the jury from which action of the court the defendant Cooke appeals. No appeal was taken by the defendant Lee McNutt.
The defendant presents his numerous assignments of error under six propositions.
It is first contended that the court erred ’ in refusing to permit the defendant, C. C. Cooke, to amend his answer and cross petition.-
After a jury was empaneled to try the cause, Cooke asked leave to amend his answer and cross petition by alleging that the $2400-and $3950 notes and mortgages securing the same were given by Lee Me- ■ Nutt to S. E. Townley, for the purpose of attempting to hinder, delay and defraud the creditors of McNutt.
, This motion to amend was denied by the court on the grounds that it came too late,. was a surprise to the plaintiff and was no defense to defendant Cooke.
After all the evidence was adduced and the case closed, .defendant Cooke asked leave to amend his answer and cross petition for the same reasons as in the prior motion, together with the further plea that •the $3,950 note alleged to have -been given on September 12, 1947, was in fact given on January 2, 1948. ’This motion was de*1111nied for- the same, reasons as' the' prior motion. ;, . ■
Defendant admits that to grant or refuse permission to amend pleadings' during the trial' is within the discretion of •the trial court and that such ruling will not be disturbed on appeal except for clear abuse thereof.
The evidence discloses that the note and mortgage were, in fact, made and entered into on September 12, 1947, but that they were not signed until the 2nd day of January, 1948; that the mortgage was filed on the 3rd day of January, 1948, and that the defendant, on the 15th, 16th, or 17th of January, 1948, took possession of the mortgaged cattle and thus had constructive notice of the mortgage-lien, therefore, these facts, if alleged would not constitute a defense for Cooke.
As to the suggested amendment alleging that the notes and mortgages were given by Lee McNutt to S. E. Towriley to delay, hinder and defraud McNutt’s creditors, we fail to see wherein this would affect a statutory lien on the cattle of which defendant Cooke had, at least, constructive notice. ■ No creditors of McNutt were parties to this action and no creditors complained of the notes and mortgages which were the basis of Townley’s cause of action against defendant Cooke.
This proposition is not sustained by the record. It does not affirmatively appear that the exercise of the discretion has operated to the prejudice of any rights of the complaining defendant, or that there was an abuse of the court’s discretion in disallowing the defendant’s suggested amendments.
Defendant’s second proposition is to the effect that the court erred in overruling his demurrer to plaintiff’s evidence and in overruling his request- for an instructed verdict and -that the verdict is not sustained by the evidence.
In this connection, plaintiff asserts that there was- a complete failure of identification of any of the cattle involved in the replevin action covered by the mortgages.
In law actions a demurrer to plaintiff’s evidence or motion for a directed verdict should -not .be sustained unless there is an entire absence of proof tending to show a right to recover. First State Bank of Addington v. Lattimer, 48 Okl. 104, 149 P. 1099, and in passing upon a demurrer to the evidence or a motion for a directed verdict the trial court must consider- as true all of the evidence favorable to the party against .whom the demurrer or motion is directed together with all inferences that may be reasonably" drawn therefrom and disregard all conflicting evidence favorable to the demurrant or movant. Fleming v. Hodgson, 199 Okl. 261, 185 P.2d 181.
There was ample evidence to sustain the trial court’s action in overruling the defendant’s demurrer and motion for a directed verdict.
The contention that the verdict is not sustained by the evidence is untenable.
In a law action tried to a jury, the jury’s verdict and trial court’s judgment based thereon will not be disturbed because of insufficiency of evidence if there is any evidence reasonably tending to support it.
' The principal complaint' of defendant is as to-'the evidence establishing’the idenity of the mortgaged cattle. This question was submitted to the jury under proper instruction, without exception.
• The defendant’s argument under this proposition attacks the credibility of the witnesses, Lee McNutt,-mortgager, and S. E. Townley, mortgagee-plaintiff. Defendant points out some discrepancies in their 'testimony and asserts that many more are to be found in the record demonstrating the improbabilities and even the impossibilities of the truth of the alleged facts testified to by the witness McNutt and plaintiff.
An examination of the evidence of these witnesses does indicate discrepancies but Lee McNutt positively identified the cattle in possession of the defendant as those covered by the mortgage of the plaintiff. On the other hand, witnesses for defendant testified that they were not the cattle described in the plaintiff’s mortgage; that on December 30, 1947, there were less *1112than three cattle on the 10th Street Farm .(the place where the mortgaged cattle were kept by McNutt) than were there in September, 1947 (when the mortgages were purportedly made); that many cattle passed through the farm; that McNutt was constantly buying and selling; that S. E. Townley told Le Roy Judkins, along about the time the lawsuit was filed, that there was not a single cow that he could identify positively.
If the evidence of McNutt is believable and the jury so found, there was a detailed identification of the cattle covered by the mortgages, establishing that defendant Cooke took possession of the same and sold and converted them to his own use.
Thus, under the rule above stated, there is evidence reasonably tending to' support the judgment.
The attack on the credibility of the witnesses is without merit. The jury was properly instructed as to that question and, this being so, the rule applicable is that credibility of witnesses • and the weight and value of their testimony, in actions of legal cognizance, are questions exclusively for the jury to pass upon. Poston v. Alexander, 191 Okl. 653, 132 P. 2d 343.
However, defendant Cooke argues that there was a contract release and notice to the public signed by Lee McNutt, Nealtha McNutt and C. C. Cooke which Lee McNutt acknowledged under oath on August 29, 1947, and thereby agreed that from and after the date thereof no other persons, firms or corporations were to have any interest in live stock transactions except himself and C. C. Cooke; that notwithstanding these solemn pronouncements by Lee McNutt, he took the witness stand and undertook to impeach himself and impeach this contract under the terms of which Cooke had invested large sums of money; that the proof shows that Lee McNutt was a consistent dealer in liver stock buying and selling promiscuously; that he was' well known to be such a dealer at the time this agreement was entered into and that such knowledge was imputable to plaintiff. Townley; that these notes and mortgages come squarely within the rule laid down by this Court in Howell v. Board, 185 Okl. 513, 94 P.2d 830 and Rogers County Bank v. Cullison, 186 Okl. 373, 98 P.2d 612, wherein it was held that a chattel mortgage given by an automobile dealer on an automobile which was a part of stock in trade to mortgagee who knew the automobile was being offered for sale to the public was ineffective as against purchaser from dealer in usual course of business without knowledge of mortgage, notwithstanding that mortgage was filed of record.
This argument is untenable. The dairy farm where these cattle were kept was not shown to be a sales barn, where the public came to buy, trade or sell cattle as was the automobile dealers place of business so as to bring it within the rule of commerce announced in the above cases.
Defendant’s third proposition is that there was a material and fatal variance between the pleadings and the proof in reference to plaintiff’s second cause of action covering the $3,950 note and mortgage asserting that the $3,950 note and mortgage alleged in the petition as having been executed on September 12, 1947, was not in fact executed or delivered to plaintiff until January 2, 1948; that no attempt at any time was. made by plaintiff to amend his pleadings to conform to the proof.
Evidence was introduced without objection showing that the note and mortgage which constituted the basis of plaintiff’s second cause of action bore the date of September 12, 1947, but that they were actually signed on January 2; 1948, and filed for record on January 3, 1948, and that the conversion occurred subsequent thereto. Under these circumstances we adhere to the rule that where evidence is introduced without objection and it appears that the substantial rights of the parties have not been affected, the amendment will be deemed to have been made. Mitchell v. Dadas, 167 Okl. 390, 30 P.2d 179.
Defendant’s proposition four is that the jury ignored and refused to give consideration to the court’s instruction No. 9, which provided:
*1113“You are instructed that there has been introduced some evidence' relating to an undertaking to substitute certain cattle in place of cattle claimed to have been covered by the mortgages, or some one of them, which had been sold, and you are instructed that under the law, such substitution cannot be made in such manner as would bind third persons, or give them notice thereof, unless the mortgage or mortgages in question were amended and re-filed, and you are therefore instructed that you are not to consider any cattle claimed to have been substituted for other cattle, as being covered by either of the mortgages relied upon in this case.”
It is contended that defendant was entitled to certain credits shown to have been due McNutt from plaintiff and that McNutt was permitted to sell 10 head of the cattle and substitute 2 head; that by reason thereof the jury evidently ignored this instruction. We do not agree. The evidence as to the value of the cattle converted, excluding the 2 head substituted was far in excess of the amount of the judgment. This being true, the presumption is that the jury followed the instructions of the court.
In proposition five defendant contends that the court erred in refusing to give defendant’s requested instructions; that, taken as a whole, the court’s instructions were ambiguous, vague and indefinite and failed to give the jury a fair perspective either of the law or the facts in the case on trial.
No objections or exceptions were taken to the instructions given by the court. No claim was made that the instructions did not cover the issues. The objections to the instructions appear to be to the structure rather than the substance.
The instructions, when considered as a whole, fairly presented the issues to the jury and it was not error to refuse defendant’s requested instructions.
Defendant’s sixth and last proposition is that the court erred in refusing to sustain the motion for a new trial and supplemental motion for a new trial because the judgment was not sustained by the evidence.
It is admittedly the rule in this jurisdiction that the trial1 court should set aside the verdict of a jury unless it is satisfied that substantial justice has been done. Linderman v. Nolan, 16 Okl. 352, 83 P. 796. But the granting or overruling of a motion for a new trial is largely a matter of discretion for the trial court, and its judgment will not be interfered with on appeal unless it clearly appears that its discretion was abused. Yellow Cab Operating Co. v. McNamara, 173 Okl. 572, 49 P.2d 563. After a careful examination of the entire record we cannot say that the trial court’s discretion was abused.
Judgment affirmed.
Judgment is hereby rendered as requested by plaintiff on the supersedeas bond against C. C. Cooke, principal, and C. C. Cooke, Jr., and D. J. Dennehy, sureties, in the amount of the verdict and judgment with interest at 6% per annum from date of judgment and costs.
ARNOLD, C. J., HALLEY, V. C. J., and CORN, DAVISON, O’NEAL and BING-AMAN, JJ., concur. WELCH, J., dissents.