Battelle

Mr. Chief Justice Murray concurred.

This cause was first submitted to a referee, who reported a judgment in favor of plaintiff.

Defendants applied for a new trial; first, for insufficiency of evidence, and second, for variance between the complaint and the proof.

It appears from the papers, that the complaint charged a contract with the defendants individually, and the evidence showed a contract with Gilbert & Co., of which firm defendants were members.

The Court below made an order granting a new trial, on condition that defendants should file a stipulation waiving all objections to the plead *141 ings, and consenting that the case be tried on its merits. To this order, imposing terms as a condition to granting a new trial, defendant excepted, but afterwards filed the stipulation required, and a new trial was had before a jury, who rendered a verdict in favor of plaintiff, and from the judgment entered upon this verdict defendant appeals. On the trial, after plaintiff had concluded his evidence, defendant moved for a non-suit, upon the same grounds taken in the motion for new trial; the refusal of the Court to non-suit plaintiff is assigned as error.

The complaint was…