#### James K. Crooks et al. v. Hibbard, Spencer, Bartlett & Co.

1. Variances—Must be Pointed Out.—A variance between the pleadings and the proofs must be pointed out in the court below, and an opportunity given to amend against it.

2. Appellate Court Practice—Motions for New Trials—Grounds. — Where a motion for anew trial does not set forth that the damages were excessive, the point can not be raised on appeal.

Assumpsit, for goods sold and delivered. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in this court at the March term, 1895.

Affirmed.

Opinion filed May 16, 1895.

Remy & Mann, attorneys for appellants.

Rosenthal, Küez & Hirschl, attorneys for appellee.

*569Mr. Presiding Justice Waterman

delivered the opinion of the Court.

Appellee brought suit against appellants and recovered judgment for $1,000; from this appellants have appealed.

Appellants insist that the court below erred in these particulars :

1st. In refusing to find for the appellants upon the first and second amended counts of appellee’s declaration because of the variance between each of them and the proof.

2d. In refusing to find for appellants upon the common counts, since the evidence did not make a case under them.

3d. In refusing to find for appellants because of the insufficiency of appellee’s proof in not showing an offer by appellee to arbitrate.

4th. In awarding excessive damages to appellee.

As to the error first charged it is sufficient to say that no variance was pointed out, and an opportunity given to amend against it. McCormick v. Durand, 37 Ill. App. 167, 168; affirmed, 136 Ill. 178; L. S. & M. S. Co. v. Ward, 33 Ill. 511, 516, 517.

If the court erred in not finding for appellants upon the common counts, such error is not shown to have been of any consequence. There was no agreement to arbitrate that constituted any defense to this suit.

The appellants’ motion for a new trial did not set forth that the damages awarded were excessive. We have examined the evidence and see no sufficient reason for thinking the judgment to be opposed to the law and the evidence.

The judgment of the Circuit Court is affirmed.