#### Thomas Brannan et al. v. Isaac Strauss et al.

1. Practice—time to object to evidence for variance. An objection that the evidence fails to sustain the cause of action as stated in the declaration comes too late on appeal to this court, when no objection was made to it in the court below, or motion made to exclude it, especially since the late *235statute allowing amendments, as, under it, the objection might have been obviated by amending the declaration.

2. Agency — right to commissions lost by misconduct. When goods are entrusted to an agent to be sold on commission, and the proceeds to be accounted for monthly, if he sells the goods and converts the proceeds to his own use, rendering no account, he will be entitled to no commissions,

Appeal from the Circuit Court of Will county; the Hon. Josiah McRoberts, Judge, presiding.

Mr. E. Phelps, and Mr. W. W. Stevens, for the appellants.

Mr. Thos. H. Hutchins, for the appellees.

Mr. Justice Scholfield

delivered the opinion of the Court:

This is an action of assumpsit, by appellees against appellants, for goods sold and delivered.

The evidence shows that the goods were consigned by appellees to appellants, to be by them sold, and accounted for monthly, as they should be sold; "that the goods were received and sold by appellants, but no account of sales was rendered; and that appellants have never paid for the goods.

It is objected that the evidence fails to sustain the cause of action as stated in the declaration, and that the judgment is therefore erroneous.

This objection comes too late. Ho objection was made to the introduction of the evidence, nor was it demurred to, nor was any motion made to exclude it on the ground of variance, in the court below.

Under our very liberal statute allowing amendments (Revised Statutes of 1874, p. 778, § 24), had this objection been made on the trial, it would have been perfectly competent for the court to have allowed the declaration to be amended to conform to the proofs, and thus have removed the ground of the objection.

Even under the strict and technical common law practice such an objection could not be made for the first time in this *236court. Pearson v. Lee, 1 Scam. 193; Barnes v. Barber, 1 Gilm. 401.

It is next objected that the judgment below was too large, in that no deduction was made on account of commissions due appellants.

But inasmuch as appellants failed to perform their duty by rendering monthly accounts of the sales of the goods, and converted the proceeds of the sales to their own use, they are entitled to no commissions. Story on Agency, § 331.

The evidence is sufficient to sustain the judgment as rendered, and it must be affirmed.

Judgment affirmed.