The complaint purports to be for an account stated. But on the trial, the proofs related to a case for goods sold and delivered. The proofs did not correspond with the complaint, and no application was made to amend.
OPINION The Court:
The complaint charges that the parties entered into a partnership to sell hay, grain, etc. That the business was continued until April, 1879, when an accounting of the whole business was had and a settlement made, by which there " became due" (was found to be due) from defendant to plaintiff a certain sum. The evidence tended to prove a purchase of the plaintiff's interest in the goods and assets of the firm by defendant. The Court below nonsuited plaintiff, in which we can not say there was error.
Judgment and order affirmed.