
    Albert O. Hesse, Respondent, v. William C. J. Doolittle, Appellant.
   Per Curiam.

The reversal is upon the ground that the recovery is for more than the amount demanded in the complaint, and on a theory contrary to, and inconsistent with, the complaint. While a recovery for $485.70 is perhaps also incompatible with the theory of the complaint, it would seem to satisfy the equities between the parties, as nearly as can be determined from the record, and the evidence in respect to it was received without exception. The action is equitable in its nature. Plaintiff paid his note, as he expected to do. And though he did not secure his stock as soon as he had a right to expect, he had the benefit of the dividends during all the years that he was kept out of possession of the stock, and the dividends amounted substantially to the amount plaintiff paid out in interest on his note. The only'real damage suffered by plaintiff was the amount he had to pay, over and above his note, in order to secure the stock to which he was entitled, namely $425, the interest on which amount, to the date of recovery, was $60.70. Defendant, appellant, stated, on the argument, that he would be satisfied with a judgment of $485.70 against him. If plaintiff is not satisfied to stipulate to reduce his judgment to that amount, he may have a new trial. All concur. Present ■—■ Sears, P. J., Taylor, Edgcomb, Thompson and Crosby, JJ. Judgment reversed on the law and a new trial granted, with costs to the appellant to abide the event, unless the plaintiff shall, within ten days, stipulate to reduce the recovery to the sum of $485.70 as of the date of entry of the judgment, in which event the judgment is modified accordingly and as so modified is affirmed, without costs of this appeal to either party.  