The sufficiency of pleas 3 and 4 was not tested bjr demurrer, but issue ivas taken upon them. Therefore, whether the facts set up in plea 3, abstractly considered, presented a good defense to plaintiffs’ claim for board of defendant’s horse or not, defendant was entitled to a verdict upon proof of them. Similarly, though plea 4 may have in point of legal fact been bad as a plea of recoupment, because the matters set- up in it did not grow out of or were not sufficiently connected with the transaction counted on by the plaintiffs, yet the defendant ivas entitled to recover the damages he claimed therein if he proved the facts averred: And he was entitled of "course to adduce evidence under, and to have the issues presented by, the pleas respectively submitted to the jury if there ivas any evidence tending to support them.
There was evidence tending to show that defendant told plaintiffs the purposes for which he wanted a horse, viz., foir a lady to drive, and that plaintiffs represented that this horse was suitable for that purpose. All this was competent under plea 4; and it to further competent for defendant to show that the representation was untrue, that “the horse ivas not gentle nor safe for a lady to drive behind.”
If it was error-to allow defendant to ask the witness Garry whether or not he was suing Cooper on the note given for part of the price of the horse, it was error without injury as the question was not answered.
It is insisted for appellants that they were prejudiced by the exclusion of this note -from the jury, because the paper showed that it was negotiable and hence would have rebutted any inference of interest -on the part of Garry as a witness to testify favorably to plaintiffs arising from the fact that he was suing Oooper on the note, etc., etc. But that the note was negotiable was already a fact proved and admitted in the case, so that plaintiffs could not have been hurt by the refusal *303of the court to allow the paper to go in evidence.
There was a material variance between the complaint and the proof in respect of the partnership prosecuting the suit and holding the alleged claim against Cooper. It is made to appear that the suit ivas prosecuted by “Warner-'Smiley Co., a partnership composed of W. M. Newton and Gf. I). Smiley.” This was in legal effect an action by Newton and Smiley. There was no evidence that the account sued on was due to such partnership, or the members composing it. To the contrary Newton testified “that- he was a member of the firm of Warner-Smiley Co., and that the other members of said firm were Gf. D. Smiley and E. T. Shaw. * * That said firm had an account against the defendant, Guy Cooper, for sixteen dollars and seventy cents.” That Cooper paid certain items of the account after suit brought [possibly while the suit was prosecuted as a corporation] “and denied that he owed the other items, and that said account was just, correct and unpaid.” And this was all the evidence on the point. There being no evidence that defendant owed Newton and Smiley or a firm composed of Newton and Smiley as alleged in the complaint, but the only evidence being of an indebtedness to a partnership composed of Newton, Smiley and Shaw, that is to Newton, Smiley and Shaiv, there was a variance fatal to a recovery by plaintiffs, and defendant was entitled to the affirmative charge against plaintiffs’ claim. It follows that if errors were committed by the court in giving the first and third charges requested by defendant, they were not prejudicial to the plaintiffs.
It was proved beyond controversy and admitted by plaintiffs that the horse was not suited for a lady to drive. Referring the second charge given for defendant to this admission and proof, appellants can take nothing on account of the court’s action in giving it.
The judgment must be affirmed.