Hightower v. Kitchens , 118 Ga. 277 ( 1903 )

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.