Newhall-House Stock Co. v. Flint & Pere Marquette Railway Co.

47 Wis. 516

Opinion

EyaN, 0. J.

Tbe only exceptions taken are to tbe findings of tbe court below.

In support of these tbe point is made here, that there was a variance between tbe contract pleaded and tbe contract proved. It was not pretended in tbe court below that the appellant was misled to its prejudice, and tbe variance must be disregarded here. E. S., sec. 2669; Russell v. Loomis, 43 Wis., 545; Delaplaine v. Turnley, 44 Wis., 31.

Another point relied on here is tbe nonjoinder of a proper defendant. This avails nothing on answer in bar. It could be taken advantage of only by answer in abatement. Markoe v. Seaver, 2 Wis., 148; Dutcher v. Dutcher, 39 Wis., 651; Plath v. Braunsdorff, 40 Wis., 107; Supervisors v. Van Stralen, 45 Wis., 675.

By the Court. — Tbe judgment of tbe court below is affirmed.