1. An amendment to a pleading, after a jury has been waived, which does not change the issues of fact but affects the remedy only, is not effective to cancel the waiver of a trial by jury.

2. Where a case is tried upon a given theory, and evidence is introduced pro and con upon such theory without objection, it is too late after trial and judgment to raise the question for the first time whether the pleadings warrant such a theory.

Judgment of the Court of Appeals reversed and that of the Court of Common Pleas affirmed.