
    FROHLICH v. GRAULICH.
    Pleading — Common Counts — Appeal from Justice’s Court— Amendments.
    Plaintiff, haying declared on the common counts alone in justice’s court, cannot amend his declaration in the circuit on appeal by adding a special count for breach of contract.
    Error to Wayne; Carpenter, J.
    Submitted April 28, 1897.
    Decided May 25, 1897.
    
      Assumpsit by Edward Frohlich against Clara Graulich for goods bargained and sold. From a judgment for plaintiff, defendant brings error.
    Reversed.
    
      Jonathan Palmer, Jr., for appellant.
    
      Durbin Newton (Maybury & Lucking, of counsel), for appellee.
   Hooker, J.

The plaintiff sued the defendant, a married woman, in justice’s court, declaring on the common counts. The bill of particulars was as follows:

Toledo. Edward Frohlich Glass Co. Detroit.
Detroit, May 15, 1895.
Sold to Charles F. Graulich, Agt.:
4 P. P. 20x68
4 P. P. 17x105
3 P. P. 62x105
IP. P. 74x105 ______________________________-_____________§201 43
Filed June 21, 1895.
W. C. Harris, Clerk.

He obtained a judgment for $70. Upon the trial at circuit, the court allowed an amendment to the declaration by adding a special' count for a breach of contract in refusing to accept and pay for the items mentioned in the bill of particulars, and a verdict and judgment followed upon this theory solely. The amendment was made and evidence admitted against objection and exception by counsel for defendant. The case is within the rule stated, in the case of Loranger v. Davidson, 110 Mich. 605.

Judgment reversed, and a new trial ordered.

The other Justices concurred.  