of these employees were engaged in picking bricks out of the wall and making niches for the purpose of inserting the footings of the cement piers for the Union Trust Company building, when the wall and side of the Hellman building fell into the excavation and thereby caused the injury to plaintiff's business and stock of goods for which damages are asked.

The findings upon which the judgment rests are, that the allegations of the second amended complaint are true, and that the wall did not fall on account of the carelessness or negligence of Hellman or the plaintiffs. There are also two special findings to the effect that the wall did not fall by reason of defective plumbing or leaky water, drain or waste pipes on the Hellman premises. The conclusions of law of the trial court are that the acts of said defendants Leonardt and Union Trust Company were the proximate causes of the falling of said wall, and that said acts were trespasses upon the Hellman premises and were carelessly and negligently done and performed.

The second amended complaint was filed by leave of the court after the evidence had closed, the cause submitted for decision and the opinion of the court been delivered, but before the filing of findings or judgment. Both defendants against whom the judgment was rendered thereafter filed and served demurrers to said complaint, and moved to strike it out on the grounds that it was filed without notice to defendants, was not served on them, was without authority of law, and that it changed the material issues in said cause, and that defendants had no opportunity to be heard on the issues so made. These demurrers were overruled and motions denied, and thereafter the defendant Leonardt filed an answer to said second amended complaint.

In support of the appeals from the order denying the motions to strike out, appellants contend that the complaint upon which the action was tried counted upon negligence alone, while the complaint upon which the findings rest alleges a trespass as well as negligence. The record does not sustain this contention. The second amended complaint merely alleges with more certainty and detail the matters contained in the first amended complaint. Neither alleges a trespass in terms. The first alleges the removal by the defendants of the shores and braces, of the dirt from about, and the bricks in

the wall. The second states the size of the niche made in the wall by the removal of the brick, the purpose for, and the manner in which, the bricks were removed, and that it was done pursuant to the plans and specifications for the Union Trust Company building. The allegations of either would support a finding of trespass against both defendants, and the same evidence might be introduced to sustain either complaint. The amendment was made in order that the allegations and proof might conform. Where the variance between pleading and proof is not material the court may direct the fact to be found according to the evidence, or may order an immediate amendment. (Code Civ. Proc., sec. 470.) A variance is material only when it has misled the adverse party to his prejudice in maintaining his action or defense on its merits. (sec. 469), and becomes a failure of proof when the allegations are not proved in their general scope and meaning. (Sec. 471.) Under section 470, pleadings may be amended without terms, under 469 upon terms, while under 471 the variance is fatal.

In cases coming under section 470 amendments to the pleading should not only be allowed but required, and it is proper to do this at any stage of the action. It is timely when the court has heard all the evidence and argument and given the cause due consideration. Upon discovering a variance it should order the pleading amended before making its findings or judgment. (Hancock v. Board, 140 Cal. 554, 562, [74 Pac. 44].) If the adverse party is denied the opportunity to present material evidence upon any issue by reason of such amendment, he should apply to the court to have the case reopened that he may introduce such evidence and have the benefit of it. (Jackson v. Jackson, 94 Cal. 462, [29 Pac. 957].) Upon such an application he must show that he was misled by or prevented from introducing evidence to rebut that upon which the amendment was based, and that if the case be reopened he will be able to present testimony tending to overcome such evidence. (Firebaugh v. Burbank, 121 Cal. 193, [53 Pac. 560].) Amendments of this character are not made for the purpose of framing issues for the trial, but to supply technical defects, or upon the supposition that issues which have been tried are within the allegations of the pleadings when such is not the case. (McDougald v. Argonaut, 117 Cal.

95, [48 Pac. 1021].) It is apparent, then, that the second amended complaint was not such an amended pleading as defendants were entitled to demur to, or answer as a matter of right, as the issues therein presented were deemed to have already been tried.

This view of the second amended complaint sustains the findings and judgment, so far as they are based upon it, and supports the ruling of the trial court in denying the defendant Union Trust Company's motion for a nonsuit.

Appellants contend that when Hellman assumed the building of the eleven-foot foundation wall in accordance with the city ordinance introduced in evidence, he thereby relieved the Union Trust Company of its obligation to use the care and take the precautions to sustain the land of Hellman that are required by section 832 of the Civil Code; that Hellman constructed a wall which was insufficient as a retaining wall, and the negligence which caused the injury to plaintiffs was that of the landlord and not the negligence of defendants. Had nothing else been done to sustain the Hellman property, and the Union Trust Company been misled as to the sufficiency of the Hellman wall as a protection, and relied upon it entirely as all the precaution necessary to be taken, some question might arise as to the estoppel of Hellman and his tenants to claim damages from the trust company. But this was not the case; the trust company, apparently accepting the Hellman wall as a sufficient foundation under the ordinance, extended it six to nine feet deeper and relied upon it as a retaining wall. If it were too flimsy for a retaining wall at eleven feet in depth, it certainly did not become less so by the extension which was admittedly the act of appellants.

Respondents claim that the eleven-foot wall was not built for a retaining wall, but as a foundation to comply with the building regulations of the city requiring an eleven-foot foundation under all brick buildings. Architect Morgan testified that it was sufficient either for foundation or as a retaining wall to that depth. When the Union Trust Company made it a part of the wall erected by it as a precautionary measure under section 832 to sustain Mr. Hellman's land, it adopted the Hellman wall, not only as sufficient for the purpose for which it was built, to wit, to support the building, but also when taken with the wall constructed by the trust

company as a sufficient retaining wall for all purposes. That Hellman took measures to support his building with a proper foundation did not release the trust company from the duty imposed upon it to support Hellman's land.

The city ordinance was admissible in this connection to show a compliance with the building regulations of the city by Mr. Hellman. It need not be considered as a rule of damages, and we do not deem it necessary to pass upon the power of the city council to pass a law on that subject.

There was evidence to support the finding that both of the appellants were guilty of a negligent trespass. The immediate causes of the collapse of the wall were the removal of the shores and braces placed against the wall by the order of Mr. Hellman's architect and the picking out and removal of the bricks from it by Leonardt's employees. The architect testified that it was intended that the braces should remain against the wall as a precaution so long as they were working and digging by the side of it, putting in the footings for the piers of the Union Trust Company's building. The braces were removed three or four days prior to the accident, but when the wall fell an employee of Leonardt was hammering the bricks from the foot of the Hellman wall with a pick to a depth of six inches, according to one witness. Twentyfour or forty-eight hours prior to the accident Leonardt was notified that the braces had been removed and was requested to replace them. They were not against the wall at the time the collapse came. The evidence clearly shows the liability of the defendant Leonardt.

That of the defendant Union Trust Company, as said by the trial court in denying its motion for a nonsuit, depends upon whether or not Leonardt, as an independent contractor, was carrying out his contract with it when he was removing the bricks from Hellman's wall, and thereby committing a trespass. The witness Smith, upon whose testimony the court relied in making this ruling, testified that the footings of the cement piers were put in in accordance with the plans and specifications of the Union Trust Company's building, and that the pier which was completed at the time of the accident projected four and one-half inches beyond the building line of the trust company. At that time he stated he did not know whether it was on the Hellman line or not. Later when

recalled by the defendants he testified that the footings of the Hellman wall extended four inches over the trust company's line, and that he was putting the trust company's footings four and one-half inches into the Hellman wall. The court stated in ruling that its ruling on the motion for a nonsuit was based upon the fact that the footings extended four and one-half inches on the Hellman property. This statement of fact by the court was unchallenged, and we think the inference supported by the evidence of architect Parkinson and others. There is evidence to sustain the finding that the four and one-half inch niches cut in the Hellman wall to accommodate the footings of the Union Trust Company's piers were cut at the instance of the defendant Union Trust Company, and that they constituted a trespass upon the property of Hellman to that extent. The picking of these bricks from the wall at a time when there were no braces to support the wall warranted a finding of negligence and disregard of proper precaution after notice given. The record would support a finding that the proximate cause of the accident was the picking and removal of these bricks alone.

There was a conflict in the testimony as to whether there was any faucet or water-pipes at the south end of the Hellman building, and the wetness of the earth near the excavation may have been the result of the breaking of either drain, sewer or water pipes, or all of them, at the time of the accident. There is evidence to support the finding that the falling of the wall was not due to leaky pipes, drains or wastepipes on the Hellman property, and therefore the finding will not be disturbed by this court.

It was not error to admit the testimony of the witness Graves as to the contents of the lease from Hellman to plaintiffs. One of the plaintiffs testified that they were in possession of the premises under a written lease, but that the lease had been lost, and he gave the details of his efforts to find it. Mr. Graves was the attorney who drew the lease, and he was competent to testify to its contents.

While the city ordinance prescribing the depth of foundations for brick buildings and declaring a rule of damages was considered admissible for the first purpose only, we do not think its admission could in any manner have prejudiced the case of defendants, as the findings, so far as they affect