The opinion
Upton, J.
The plaintiff appeals from a verdict and judgment in his favor for an amount less than that claimed by Mm, and assigns as error :
1st. The ruling out of evidence in relation to the delivery of barley at Camp Watson.
2d. Buling out the plaintiff’s testimony concerning the profits he could have made by hauling the barley to Camp Watson.
3d and 4th. In instructing the jury on the same points.
The first and third assignments of error present but one point. Without examining the question whether the facts stated in the pleadings in regard to the contract for the delivery of barley, and its non-fulfillment, are a sufficient foundation for special damages — it seems, from the record, that the evidence rejected did not correspond with the allegations of the complaint. The allegation was, that the plaintiff had actually contracted to a sale of the grain, but the rejected evidence was, that he had a conditional promise —a promise, that, upon a certain contingency, the buyers would consent to take the grain, and that that contingency afterwards happened. If the evidence would have laid a *438 sufficient foundation for the special damages, it was within the discretion of the court to disregard the variance between the allegation and the proof. (Secs. 94 and 95 of the Code.) But nothing short of an abuse of that discretion could be assigned'as error on appeal — besides.it is not clear that the facts offered in evidence would make a case for special damages. The second and fourth assignments of error relate to the special damages arising out of the loss of the business of hauling. The pleading is fataEy defective upoii this point. It is not shown that the plaintiff was thrown out of employment, or that the five or seven dollars per day that he could have earned with his team in the business of hauling was any more than he could have earned at other business. The allegations on this point, if true, do not show that he was specially damaged in this particular. (1 Chitty, Pls. ss. 395, 398, 399.)
«Judgment is affirmed.