
    The Newhall-House Stock Company vs. The Flint & Pere Marquette Railway Company.
    
      (1) Variance. (2) Nonjoinder.
    
    1. A variance between the contract pleaded and that proven, by which the appellant was not misled, is disregarded here.
    2. Nonjoinder of a proper defendant can be taken advantage of only by answer in abatement.
    APPEAL from the County Court of Milwaukee County.
    Action for rent. The complaint was, in substance, that on or about May 1,1878, plaintiff leased to defendant one-half of an office, known as “Office No. 5,” in the Newhall House block, in the city of Milwaukee for the term of one year, at the annual rent of $325; that defendant agreed to pay said rent in equal portions on the first day of each month, the first payment to be made on the first of June; and that, after demand, it had failed to pay the rent which became due on the first days of July, August and September, 1878, amounting to $81.25, for which amount, with interest, etc., judgment was demanded.
    The answer contained a general denial, and an averment that the tenancy was by the month, and not by the year.
    The county court found as facts, that on the first day of May, 1878, plaintiff leased to defendant and one S. M. Ogden said office No. 5, for the term of one year from that date, at the annual rent of $650, to be paid in equal portions on the first day of each month, the first payment to be made on the first of June; and that a portion of the rent which became due on the first days of July, August and September, 1878, respectively, amounting in all to $81.25, had not been paid; and that there was due plaintiff from defendant, including interest to the date of the decision, $83.12.
    From a judgment for plaintiff in accordance with these findings, the defendant appealed.
    
      Tbe cause was submitted on tbe brief of E. Mariner for tbe appellant, and that of Dixon da Noyes for the respondent.
   EyaN, 0. J.

Tbe only exceptions taken are to tbe findings of tbe court below.

In support of these tbe point is made here, that there was a variance between tbe contract pleaded and tbe contract proved. It was not pretended in tbe court below that the appellant was misled to its prejudice, and tbe variance must be disregarded here. E. S., sec. 2669; Russell v. Loomis, 43 Wis., 545; Delaplaine v. Turnley, 44 Wis., 31.

Another point relied on here is tbe nonjoinder of a proper defendant. This avails nothing on answer in bar. It could be taken advantage of only by answer in abatement. Markoe v. Seaver, 2 Wis., 148; Dutcher v. Dutcher, 39 Wis., 651; Plath v. Braunsdorff, 40 Wis., 107; Supervisors v. Van Stralen, 45 Wis., 675.

By the Court. — Tbe judgment of tbe court below is affirmed.  