Epitomized Opinion

The Shannon Company brought suit in the Court of Common Pleas of Hamilton County to recover on an account and also asking judgment for $2,424 with interest based upon a certain agreement with the Mitchell Furniture Company. The Mitchell Furniture Company had entered into a contract to manufacture 25,000 cabinets for the Columbia Grapho-phone Manufacturing Co. and in order to carry out the terms of this contract entered into an oral agreement with the plaintiff whereby the plaintiff was to produce and furnish mahogany and walnut stains and filler. After plaintiff had furnished these stains for some time the defendant notified it that they were unsatisfactory. Thereupon the plaintiff can-celled all orders and refused to deliver any more material. To the plaintiff’s amended petition the Furniture Co. filed a denial and also a cross petition claiming that it had suffered heavy losses because it was necessary to remove the filler and siatn from'5 the cabinets. At the trial the defendant recovered a judgment for $5,450. Plaintiff prosecuted error. In affirming the judgment of the Common Pleas Court, the Court of Appeals held:

1. It cannot be said as a' matter of law that the verdict was manifestly against the weight of the evidence.

2. No variance between the allegation in the pleading, and the proof, shall be deemed material, unless it has actually misled the adverse party to his prejudice, in maintaining his action or defense upon the merits.

3.As the pleadings made a direct issue on the question as to whether the contract was verbal or oral and also as to the time when it was made, evidence was admissible on this disputed issue and it was proper to submit the same to the jury for its consideration.