Brannan v. Strauss

Mr. Justice Scholfield delivered the opinion of the Court: This is an action of assumpsit, by appellees against appellants, for goods sold and delivered. The evidence shows that the goods were consigned by appellees to appellants, to be by them sold, and accounted for monthly, as they should be sold; "that the goods were received and sold by appellants, but no account of sales was rendered; and that appellants have never paid for the goods. It is objected that the evidence fails to sustain the cause of action as stated in the declaration, and that the judgment is therefore erroneous. This objection comes too late. Ho objection was made to the introduction of the evidence, nor was it demurred to, nor was any motion made to exclude it on the ground of variance, in the court below. Under our very liberal statute allowing amendments (Revised Statutes of 1874, p. 778, § 24), had this objection been made on the trial, it would have been perfectly competent for the court to have allowed the declaration to be amended to conform to the proofs, and thus have removed the ground of the objection. Even under the strict and technical common law practice such an objection could not be made for the first time in this court. Pearson v. Lee, 1 Scam. 193; Barnes v. Barber, 1 Gilm. 401. It is next objected that the judgment below was too large, in that no deduction was made on account of commissions due appellants. But inasmuch as appellants failed to perform their duty by rendering monthly accounts of the sales of the goods, and converted the proceeds of the sales to their own use, they are entitled to no commissions. Story on Agency, § 331. The evidence is sufficient to sustain the judgment as rendered, and it must be affirmed. Judgment affirmed.