Stevens v. Matthewson (1891) 45 Kan. 594, 26 P. 38. See, also, Pomeroy's Code Remedies (4th Ed.) pp. 439-441. Under this construction of said sections of our statutes, this and other courts have been quite liberal in allowing amendment of petitions (see Snider v. Windsor, 77 Kan. 67, 93 P. 600; Z. J. Fort Produce Co. v. Southwestern Grain Produce Co., 26 Okla. 13, 108 P. 386; Trower v. Roberts, 30 Okla. 215, 120 P. 617; E. Van Winkle Gin Machine Works v. Brooks, 53 Okla. 411, 156 P. 1152; Purdy v. Foster, 109 Okla. 57; 234 P. 760; Bliss on Code Pleading (3rd Ed.) ch. 20, § 429; Pomeroy's Code Remedies (4th Ed.) pp. 632-639; 49 C. J. pp. 498-500, 509-513), and there is even more liberality in allowing amendment of answers. See 49 C. J. 529; Bliss on Code Pleading (3rd Ed.) ch. 20, § 430; Bancroft's Code Pleading, vol. 1, ch. 27, § 548. Thus it is held that an answer may be amended by setting up a distinct defense which must be affirmatively pleaded.
Rosenthal Paper Co. v. NationalFolding Box Paper Co. 226 N.Y. 313, 322. 3 Williston, Contracts, (Rev. Ed.) § 669. Compare Allen v. Kimball, 23 Pick. 473; Foster v. Purdy, 5 Met. 442; Reed v. Stoddard, 100 Mass. 425. It is unnecessary to consider other questions raised by the report.
But this exception was early established in order to avoid circuity of action, as otherwise the court would be burdened with cross actions for the same damages, one on the original liability and the other on the covenant not to sue." Foster v. Purdy, 5 Met. 442. Green v. Hoffarth, 277 Mass. 508. The plaintiff in the case at bar contends that, if the defendants are permitted to pursue their actions against the company and to recover, the covenant not being pleadable in bar in those actions, the company will in turn look to him for reimbursement of any sums paid in satisfaction of any judgment, and that he has no adequate remedy at law.
Evidence of such defective condition was received at the trial without objection on the part of the defendant railway company, and evidence offered by it in contradiction thereof. In this state of the record, objections to the submission, by the court, of the defective condition of the crossing and of the right of way to the jury were properly overruled, and if there was any evidence reasonably tending to show negligence on the part of the defendant railway company, in respect of the manner in which it maintained said crossing and of its right of way in the vicinity thereof, a finding and verdict by the jury against the defendant railway company on these issues must be sustained on appeal. Gearhardt v. Moulder, 85 Okla. 200, 205 P. 141; Muegge v. Muegge, 104 Okla. 43, 230 P. 482; Purdy v. Foster, 109 Okla. 57, 234 P. 760. As we understand the rule, where the trial proceeds on the theory that certain matters are within the issues raised by the pleadings in the case, and evidence is introduced as to such issues without objection, the petition will be regarded as amended so as to conform to the evidence introduced, and if there is evidence reasonably tending to support the judgment, it will be sustained on appeal in all respects as if the judgment were based upon issues raised by the pleadings in the first instance.
But this exception was early established in order to avoid circuity of action, as otherwise the court would be burdened with cross actions for the same damages, one on the original liability and the other on the covenant not to sue. Hodges v. Smith, Cro. Eliz. 623. Lacy v. Kynaston, 12 Mod. 548. Foster v. Purdy, 5 Met. 442. The great weight of authority supports the doctrine that a covenant not to sue one of several joint tortfeasors does not operate as a release of the others from liability.
The agreement was not a technical release, but it operated as such, and the fact that it was not under seal, or was oral, does not affect the application of the principle. ( Foster v. Purdy, 5 Metc. 442; Davis v. Spencer, supra; Farmers' Bank v. Blair, 44 Barb. 641.) The only part of the agreement which was executory was the undertaking on the part of the defendant to satisfy the remaining indebtedness of McRae, or to consent to his discharge in bankruptcy at his option.