The amendment to the plea was not objected to, and the plea as, amended was practically a declaration of the defendant’s election to waive the tort and, by cross-action of set-off, to sue .upon a breach of contract. Civil Code, § 4407. The court therefore erred in striking the plea on the ground that it was an effort to set off a tort against a claim arising ex contractu, and in thereafter directing a verdict. Even if the original plea can be construed as a set-off sounding in tort, the defendant had the right to waive the tort and sue’ upon the alleged breach of contract. Judgment reversed.