Marinovich

Appeal by the defendant from the judgment' and from an order denying his motion for a new trial.

On July 21, 1903, the defendant executed the following, contract in writing:—

The company never paid any dividend upon the stock, whereupon, on March 30, 1905, the plaintiff tendered to defendant his certificate of stock, properly indorsed, and demanded that defendant then and there repurchase said stock and pay plaintiff three thousand dollars therefor. Defendant refused and the plaintiff began this action to recover the price so agreed upon. The action was tried by a jury, which returned a verdict for the plaintiff for three thousand dollars.

The complaint declared upon the above contract according to its legal effect, averring, in substance, that the defendant thereby agreed to purchase the fifty shares of stock in question at the price of three thousand dollars, if the company did not pay an annual dividend of not less than three and one half per cent upon said stock. Upon the trial, the introduction of the contract in evidence, in support of the allegation, was objected to on the ground that there was a variance between the contract alleged and that offered in proof, and the…