I concur with the views expressed by Hr. Justice Scott. In addition and in answer to certain technical objections to this action noted by Hr. Justice Ingbaham, I think it fair to state that upon tiie argument before this court the learned counsel for the appellant urged that this court, irrespective of the technical question of the refusal of a “ transfer,” express its opinion upon the right of the company to refuse to transport a passenger who had boarded' a “ short service ” car, from the terminus of said car to his destination upon a following car, without the exaction of an additional fare.
I assume that, irrespective of the pleadings, parties may, by their conduct, admissions, contentions and waivers in open court, shape the litigation.
As counsel stated that the purpose of the appeal and the real question .involved was as' above set forth, it seems to me that the question was submitted to the court and so is before us for decision.
Determination and judgment reversed, new trial ordered, costs to appellant to abide event.