
    Fox v. Cohen, Appellant.
    
      Appeals — Assignments of error — Violation of rules.
    
    
      ' Mere general assignments of error which do not set forth or quote any decree, order, or ruling, are not in accordance with the rules of court.
    
      
      Practice, O. P. — Amendment—Form of action — Variance—Exceptions.
    
    Where a writ has been issued in assumpsit and the statement is in trespass, the court may permit the form of action to be amended so as to conform to the statement.
    Where no exception has been taken in the court below to an alleged variance between the statement of claim and the proof, the appellate court will not consider the question on appeal.
    Argued Oct. 17, 191'6.
    Appeal, No. 93, Oct. T., 1916, by defendants, from judgment of O. P. Municipal Court,. Philadelphia Co., July T., 1915, No. 423, for plaintiff on case tried by the court without a jury in suit of George I. Pox v. Jacob Cohen and Benjamin Shuman, late copartners, trading as Cohen & Schuman.
    Before Orlady, P. J., Porter, Henderson, Head, Kepi-iart, Trexler and Williams, JJ.
    Affirmed.
    Trespass for conversion of goods.
    From the record it appeared that by a mistake the writ was issued in assumpsit. The court after the statement was filed permitted the form of action to be amended to trespass. No exception was taken to this action of the court.
    At the trial the defendants asked for binding instructions in their favor, which Avas refused and judgment was entered for plaintiff for $272.50. Defendant appealed.
    
      Errors assigned were in the following form:
    1. The learned court erred in entering judgment in favor of the plaintiff for $272.50.
    2. The learned court erred in not entering judgment for the defendants upon the point submitted to the court at the trial of the issue.
    3. The learned court erred in not entering judgment for the defendants n. o. v., in accordance with the request of the defendants.
    4. The learned court erred in entering judgment for the plaintiff in an action of trespass, and not finding that the action should have been in assumpsit.
    December 18, 1916:
    5. The learned court erred in not entering judgment for the defendants upon the ground that the action should have been in assumpsit and not in trespass.
    
      Gordon A. Bloch, with him Clinton 0. Mayer, for appellant.
    
      A. S. Longbottom, with him Robert J. Byron and G. Lawrence Pape, for appellee.
   Opinion by

Kephart, J.,

The assignments of error are not in accordance with the rules of court and this appeal should be quashed. We have, however, considered the case on its merits and have concluded that the judgment of the court below was properly founded. The appellant does not deny that it owes the plaintiff the amount sued for, but contends that there is a variance between the plaintiff’s statement and his proof. No exception was taken to the order amending the form of action and it .was not error for the court below to allow such amendment. No exception was taken to any supposed variance as required by our many decisions. It cannot be taken advantage of on a point for binding direction: Ward v. Mfg. Co., 247 Pa. 277.

We have, however, examined the testimony and find no material variance.

The judgment of the court below is affirmed.  