#### E. H. Johnson, Trustee, Appellee, v. Abraham M. Goldberg et al., trading as A. M. Goldberg & Brothers, Appellants.

Gen. No. 20,915.

(Not to be reported in full.)

Appeal from the Municipal Court of Chicago; the Hon. Hugh J. Kearns, Judge, presiding.

Heard in the Branch Appellate Court at the October term, 1914.

Reversed and remanded.

Opinion filed October 5, 1915.

*26Statement of the Case.

Action by E. H. Johnson, trustee of the estate of Jacob Shynman, bankrupt, against Abraham M. Goldberg, Philip Goldberg and Morris Goldberg, trading as A. M. Goldberg & Brothers.

The original statement of claim averred that defendants agreed to pay Shynman’s creditors $5,022.12, and the amended statement, that they agreed to pay Shynman that sum for the benefit of his creditors.

The case was heard and submitted to the jury on the theory that plaintiff could recover only on an agreement by defendants to pay all Shynman’s debts, and that they amounted to said sum.

Plaintiff’s evidence tended to support his allegations, and defendants’ tended to show that they agreed to pay Shynman only $3,000 for Shynman’s stock and machinery and incumbrances thereon, and that they performed their agreement.

The jury evidently accepted defendants’ version of the contract but rejected their claim of payment. The jury were instructed, however, that unless they found the defendants agreed to pay all the debts of Shynman as charged in the statement of claim, they must find against the plaintiff and for defendants, and also that unless they found from the evidence that a definite amount was agreed upon between the parties, their finding should be for defendants. That Shynman’s debts amounted to $5,022.12 was not questioned. The verdict rendered was for $3,000, and the defendants appeal.

E. N. Zoline and Morris K. Levinson, for appellants; Morris K. Levinson, of counsel.

Samuel J. Andalman, for appellee; Jacob Cohen, of counsel.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Barnes

delivered the opinion of the court.

*27Abstract of the Decision.

1. Appeal and error, § 1402 * —when verdict not sustained. A verdict so inconsistent with the theory of the suit and instructions, and so irreconcilable with the evidence that it cannot be deemed otherwise than a mere compromise cannot be sustained on appeal.

2. Municipal Court of Chicago, § 13 * —when variance is material. A plaintiff cannot make one claim in his statement of claim and recover on an entirely different claim.