Battelle v. Connor

The opinion of the Court was delivered by Mr. Justice Terry.

Mr. Chief Justice Murray concurred.

This cause was first submitted to a referee, who reported a judgment in favor of plaintiff.

Defendants applied for a new trial; first, for insufficiency of evidence, and second, for variance between the complaint and the proof.

It appears from the papers, that the complaint charged a contract with the defendants individually, and the evidence showed a contract with Gilbert & Co., of which firm defendants were members.

The Court below made an order granting a new trial, on condition that defendants…