
    Hightower v. Kitchens.
    Argued June 5, —
    Decided July 1, 1903.
    Complaint. Before Judge Adams. City court of Dublin. October 29, 1902.
    
      Hawkins & Weddington, for plaintiff in error.
    
      S. B. Baker, and H. P. Howard, contra.
   Cobb, J.

Where suit is brought for a named, sum, alleged to be due the plaintiff under a con tract for the sale of a number of musical instruments upon a commission of 12 1/2% on the proceeds of each sale, evidence showing that the plaintiff was, under his contractwith the defendant, to receive 11 1/4% commission on the proceeds of the sale of such musical instruments does not constitute a fatal variance between the allegata and the probata. Under such evidence a verdict for 11 1/4% of the total amount of the proceeds of sales made by plaintiff is warranted. Judgment affirmed.

By five Justices.  