#### Chicago, Peoria & St. Louis Railway Company of Illinois v. Warner J. Alderson.

1. Variance—how objection of, should be made. A variance should be objected to and specifically pointed out in the trial court; otherwise it will hot avail upon appeal.

Action of assumpsit. Appeal from the County Court of Macoupin County; the Hon. John B. Vaughn, Judge, presiding. Heard in this court at the May term, 1904.

Affirmed upon remittitur.

Opinion filed October 14, 1904.

Wilson, Warren & Child and Bell & Burton, for appellant.

*442Knotts & Terry, for appellee.

Mr. Justice Gest

delivered the opinion of the court.

This suit is in assumpsit upon an alleged contract be-' tween the parties'for the carriage of six carloads of cattle and one carload of hogs from Rohrer, a station in Morgan county on defendant’s road to Chicago. The declaration avers the delivery of the stock at Rohrer on the 1st day of July, 1903, to be on that day taken, conveyed and delivered in Chicago on the morning of the day next following; that defendant failed and neglected to convey and deliver the stock whereby “one of said cattle of the value of $80 sickened and died, and the other said cattle and said hogs greatly shrunk in weight and depreciated in value, and the plaintiff expended divers large sums of money in and about reshipping, feeding and disposing of the same, and the market value thereof greatly declined during the delay occasioned thereby.”

The general issue was pleaded and the cause tried by the court without a jury, by agreement of the parties, and judgment rendered for plaintiff for $865.15.

The case was heard wholly upon the evidence introduced by the plaintiff, Alderson, no evidence being offered by the defendant, appellant. We have read and considered the abstract and briefs of counsel and fail to find any substantial error except in the amount of the finding and judgment. The declaration is sufficient, the evidence in general is pertinent to the declaration, and in so far as it was not, no objection was made on the trial on grounds of variance. If such objection is made the particular variance must be pointed out so that, if need be therefor, amendment may be made to avoid it. The evidence sustains every material averment of the declaration. There was no waiver of right under the contract, nor abandonment thereof as suggested by defendant. The measure of damages that seems to have been applied by the court was not altogether correct. The judgment should have been for the sum of $771.6é.

Bo valuable end would be subserved by a discussion at length of the evidence or of the questions of law which are *443suggested. Those questions are old and well settled, and such discussion here would be a useless cumbering of the Appellate Court reports. Upon filing remittitur in this court by plaintiff of the excess over said sum of $771.61, to be made within thirty days after notification by the clerk of this court of this order, the judgment will be affirmed; otherwise it will be reversed and remanded.

Affirmed upon remittitur.

Remittitur filed October 28, 1901.