
    William E. Cummin, administrator v. George Wilcox.
    
      Amendment of Ml of particulars — Failure of evidence.
    
    The objection that the evidence did not tend to prove a demand set forth in the bill of particulars cannot be considered by the Supreme Court if it was not made below.
    A plaintiff may properly be allowed to amend his bill of particulars where the evidence does not tend to prove a demand set forth therein.
    Error to Shiawassee.
    Submitted January 12.
    Decided January 18.
    Assumpsit by Cummin, as administrator of the estate of . Alexander Cummin, against Wilcox, who had purchased goods of decedent. There had been mutual dealings between decedent arid Wilcox, and after trie allowance of an offset to tbe latter, there was proved to be a balance due from him for which the suit was begun. Plaintiff recovered in justice’s court, and defendant had judgment in the circuit court on appeal. Plaintiff brings error.
    Reversed..
    
      Albert R. McBride for plaintiff in error.
    
      James M. Qoodell for defendant in error.
   Marston, J.

There was evidence given and offered in this case tending to show that the estate represented by the-plaintiff had a claim against the defendant which the latter had admitted to be correct. This evidence was practically ruled out and exceptions taken. In support of the ruling-it is said in counsel’s brief in this court that this evidence-did not tend to prove the demand set forth in plaintiff’s bill of particulars. This may. have been the case but no such objection seems to have been made in the court below. If it had, an amendment doubtless would have been permitted.

Judgment reversed with costs and new trial ordered.

The other Justices concurred.  