On the Application for Rehearing.
Per Curiam.On consideration of the application for rehearing, the court has reached the conclusion that there is a fatal *78variance between the contract sued on and the contract proved. The complaint avers a contract stipulating for payment by Prestwood to Eldriclge of fifteen cents for each timber log and ten cents for each lumber log floated by the latter from the “Big Wasteway” to the former’s mill. That was the original written contract, but it was modified by mutual consent of the parties long before the matters complained of transpired so as to stipulate for the payment of fifteen cents per log for all logs so floated by plaintiff; and this is not only shown by the undisputed evidence, but was admitted on all hands at the trial. On this state of case charges 1, 3 and 5, refused to the defendant, should have been given.
The judgment of affirmance must therefore be set aside; and the judgment of the lower court will be reversed and the cause remanded.