J. A. & W. BIRD & CO. v. Gustin-Boyer Supply Co.

ELLISON, J. This action is based upon a petition containing two counts. Plaintiffs obtained judgment in the trial court. There is no contest in this court over the first count and should not be as to the second. We are not able to discover any possible ground to justify a reversal of the judgment. The second count pleads an agreement whereby plaintiffs were to employ a certain traveling salesman or drummer to sell certain goods handled by both plaintiffs and defendant in a certain territory. That plaintiffs would advance the salary and expenses of the salesman and make a statement thereof to défendant who would thereupon remit the sum to plaintiffs. Performance by plaintiffs is then pleaded and a failure of defendant to pay is alleged. The trial court gave a declaration of law submitting the issue, as thus tendered by the petition and defendant’s general denial. No objection was made to this declaration by defendant’s motion for new trial. It is contended that there was a different case made by the evidence from that stated in the petition. We do not think so. The declaration for plaintiffs was justified by the evidence and the finding of the court concludes us since it has evidence tending to support it. The most that could be said by the way of objection, would be that there was some variance in matter of detail between the proof and the case stated. But no proper objection was made at the trial which has so often been stated to be necessary when a variance is the ground of complaint. It is, however, said that there was a failure of proof, but. we think that point is not well taken. The judgment, being the only one that could well have been rendered and being manifestly for the right party, is affirmed. All concur.