The opinion of the court was delivered by

The defendant excepted to the refusal of the court to direct a verdict for him on account of a variance between the declaration and evidence, and because the evidence had no tendency to prove a sale of the patented invention described in the declaration by the plaintiff to the defendant. The court is never justified in directing a verdict on the ground of a variance between the proof and the declaration, when there is any evidence in the case that has a tendency to prove the facts stated in the declaration that are essential to the right of recovery, and from *361which the jury might find the facts as alleged. Iu .this case there was not only such evidence, but it was sufficient in amount, in the judgment of the jury, under instructions from the court that were not excepted to, to justify them in 'finding such facts proved. This being the case, it would have been error to have complied with the request.

The case shows that there was evidence that had a tendency to show that the sale of the invention described in the declaration was made by the defendant to the plaintiff, and hence it was the right of the plaintiff to have that evidence submitted to the jury.

We do not find any error, and the judgment is affirmed.