the absence of a showing that defendant was | sumpsit," and also gave him leave to amend thereby prejudiced. his declaration by adding, after the words "trespass on the case," the words "on prem [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 660, 664-666; Dec. Dig. ises," and, at the end of the first and of the 245(4).] 11. CARRIERS 127-COMMON CARRIER OF GOODS-FORM OF ACTION. A common carrier of goods may be sued for loss or damage to merchandise either in assumpsit for breach of contract to safely carry goods, or in tort for negligence. [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 560, 562-564; Dec. Dig. 127.1 12. APPEAL AND ERROR 1041(3)—HARMLESS ERROR-AMENDMENT OF PLEADINGSFAILURE TO FILE AMENDED PLEADING. Under sections 1 and 7, Statute of Amendments and Jeofails (Hurd's Rev. St. 1915-16, c. 7), permitting amendments before final judgment, where plaintiff's amendment, changing form of action from tort to assumpsit, was allowed, but no amended pleading filed, and the subsequent proceedings were on the assumption that amendment had been made, the failure to file an amended plea was not prejudicial. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4108; Dec. Dig. 1041 (3).] 13. APPEAL AND ERROR 1041(2)-AMENDMENT-FAILURE TO FILE-HARMLESS ERROR. Where an amendment has been allowed to conform the pleadings to the evidence, which changed form of action from tort to assumpsit, that the amended pleading was not filed is not ground for reversal; the subsequent proceedings being treated as in assumpsit. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 4107; Dec. Dig. 1041 (2).] Error to Branch B Appellate Court, First District, on Appeal from Municipal Court of Chicago; Hosea W. Wells, Judge. Action by Herbert Hinchliffe against the Wenig Teaming Company. From a judgment of the Appellate Court, affirming a judgment for plaintiff (194 Ill. App. 627), the defendant brings error. Affirmed. Francis E. Croarkin, of Chicago, for plaintiff in error. Louis Ziv and F. S. Loomis, both of Chicago, for defendant in error. CARTER, J. On January 19, 1910, the defendant in error, Herbert Hinchliffe, for the use of Carson, Pirie, Scott & Co., commenced a first-class action in tort in the municipal court of Chicago against the Wenig Teaming Company, plaintiff in error. The declaration, as originally filed, contained two counts. The first count charged plaintiff in error on its liability as a common carrier. The second count charged it as bailee for hire onlythat is, as a private carrier. February 7, 1910, plaintiff in error filed a plea of not guilty, and the cause came on for trial before a jury. The bill of exceptions shows that on the morning of February 5th, after all the evidence had been heard, plaintiff in error moved the court to instruct the jury to find the defendant not guilty, which motion was denied; that thereupon, in chambers, the court gave defendant in error leave, on motion, "to change the form of action to as second count, by striking out the words "to the damage of the plaintiff in the sum of $1310.03, and therefore the plaintiff brings this suit, etc.," and inserting in lieu thereof, "whereby said defendant became liable to pay said plaintiff said sum of money, and in consideration thereof the defendant well and truly promised to pay the same, nevertheless said defendant, not regarding said promise, refused, and still does refuse, to pay the same, to the damage of said plaintiff in the sum of $1,650." The trial court gave plaintiff in error all day of said February 5th in which to plead to said declaration as amended, stating at the time that the record would show: "That by agreement the defendant may present any defense under the general issue that might have been presented under any special plea, if pleaded." Plaintiff in error objected and excepted to this ruling of the court. The common-law record shows that on this same day plaintiff in error filed a plea of the general issue in assumpsit. The record, however, does not show that defendant in error actually filed an amendment to his declaration, changing it from an action in tort to one in assumpsit, in accordance with the leave granted him. The jury returned a verdict assessing defendant in error's damages at $1,292.77. Thereafter motions for new trial and in arrest of judgment were overruled and judgment entered for that amount. On appeal to the Appellate Court the judgment was affirmed. The case has been brought here on petition for certio rari. Defendant in error for over 20 years had been engaged in the teaming business in Chicago. He had an arrangement with Carson, Pirie, Scott & Co. to do teaming and hauling for them, and to provide as many teams each day as they should notify him, on the preceding day, that they would need. If he was short of teams, he would telephone the plaintiff in error or others engaged in the teaming business and request them to furnish him extra teams. Plaintiff in error was engaged in the teaming business in Chicago, hauling merchandise from depots to warehouses and from warehouses to stores, ready to do business for any one who sought its services for compensation. January 3, 1910, Carson, Pirie, Scott & Co. notified Hinchliffe that they would need the following day a certain number of teams, which was greater than he could furnish. On the evening of that day Hinchliffe testified he telephoned an official of plaintiff in error asking how many teams it could furnish him the next day, and this official promised that he would furnish Hinchliffe three teams to go to warehouse C of Carson, Pirie, Scott & Co. the next morn For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Standard Scale Co., 237 Ill. 374, 86 N. E. 745; Heidenreich v. Bremner, 260 Ill. 439, 103 N. E. 275; Fesser v. Chicago and Illinois Midland Railway Co., 267 Ill. 418, 108 N. E. 709. There is evidence in the record fairly tending to support the verdict of the jury and that plaintiff in error employed the teamster, Moran, and had full power to discharge him, and there is evidence, also, that fairly tends to support the verdict on all other controverted questions of fact. Upon these questions the verdict of the jury and judgment of the trial court, affirmed by the Appellate Court, are binding here. We can only inquire as to whether the rules of law were properly applied in the trial court. ing; that these teams were not there the of fact as to whether the story of one witnext morning as promised; that after tele- ness is more reasonable or credible than that phoning several times during the day to plain-of another, or whether the weight or pretiff in error, the understanding was finally ponderance of evidence is against the verreached that only one team could be furnish- dict, can be raised in this court. Reiter v. ed. That team not arriving at the store, about 4 o'clock in the afternoon the defendant in error again telephoned to plaintiff in error's office, and was advised by the same official over the telephone that a team had been sent belonging to the Guthmann Transfer Company, another teaming concern, and that evidently something was wrong. The evidence shows that early on the morning of January 4th a representative of plaintiff in error telephoned the Guthmann Transfer Company's office, requesting the use of a team and truck for the day; that the team and truck were furnished, and the teamster drove to said warehouse of Carson, Pirie, Scott & Co., and was given a load of merchandise, which was never delivered to any store of Carson, Pirie, Scott & Co. as directed; that the teamster and merchandise disappeared; that the horses and empty truck wagon were found that night on the west side of the city, near the Northwestern Railroad tracks. The evidence is not entirely clear as to just how the teamster for this team and truck was employed. There is evidence tending to show that a man bearing a slip of paper or order from plaintiff in error called at the Guthmann Transfer Company's place of business, gave his name as Moran, handed in the slip or order, was put in charge of the team and truck, and drove away; that a man giving his name as Moran called with this team and truck at warehouse C and obtained the load of merchandise in question. 4 [5-9] Counsel for plaintiff in error argues that it is not a common carrier. That is a question of fact to be passed on by the jury under proper instructions. Bare v. American Forwarding Co., 242 Ill. 298, 89 N. E. 1021. All persons who undertake for hire to carry the goods of another are either private or common carriers. Private carriers, like ordinary bailees for hire, are liable only for injury or loss of the goods intrusted to them when it results from the failure of themselves or their servants to exercise ordinary care. Common carriers are liable, as insurers, for all injuries or loss not resulting from the act of God or the public enemy. R. C. L. 549. While it has sometimes been doubted whether cartmen or truckmen, employed to carry goods from one part of the [1-4] The chief argument of counsel for city to another, are to be regarded as complaintiff in error is that the evidence does mon carriers, it is a general rule that when not sustain the verdict; that the preponder- they undertake to carry goods for hire for ance of the evidence proves that Moran was the public generally and as a common emnot employed by plaintiff in error and was ployment in the city they are common carnot under its authority or direction; that riers. Parmelee v. Lowitz, 74 Ill. 116, 24 it was not shown that the Moran who took Am. Rep. 276; 4 R. C. L. 557, and cited casthe team from the Guthmann Transfer Comes. We are inclined to the view that on the pany was the same Moran who obtained the proof in this case, under the authorities, merchandise at warehouse C; that the wit- plaintiff in error would be held to be a comnesses did not sufficiently identify him. mon carrier. If that be true, the instrucCounsel in his brief has argued these questions of the court on the question of carrier tions of fact at great length and in much were more favorable to plaintiff in error detail, insisting that a conspiracy existed between Hinchliffe and the Guthmann Transfer Company to place the responsibility upon plaintiff in error. We find no evidence of such conspiracy in the record, but these and many other questions discussed by counsel for plaintiff in error are questions of fact. It is not the province of this court to determine or pass upon such questions in an action at law, further than to ascertain if there is any evidence in the record fairly tending to support plaintiff's cause of action. The weight to be given to the evidence must be submitted to the jury, and when their finding of fact has been approved by than the law justified, for those instructions only made plaintiff in error liable if it was a private carrier or ordinary bailee for hire. [10] Counsel for plaintiff in error further insists that the court erred in permitting defendant in error to change his form of action during the trial. Section 39 of the Practice Act provides that: suit, amendments may be allowed on such terms In May v. Disconto Gesellschaft, 211 Ill. N. C. 275; Kretser v. Cary, 52 Wis. 374, 310, 71 N. E. 1001, this court sanctioned the 9 N. W. 161; Lyon v. Brown, 65 Tenn. (6 action of the trial court in permitting the Baxt.) 64; Hellyer v. Bowser, 76 Ind. 35. amendment of an original declaration in tort Section 1 of our statute on amendments and so as to make it a declaration in assumpsit. jeofails (Hurd's Rev. St. 1915-16, c. 7) proWe cannot see how plaintiff in error was vides that the trial court shall have power to injured by this change. The allegations re- permit amendments "in any process, pleadmained the same in the amended declaration ing or proceeding in such action, either in as in the original, the only modification being form or substance, for the furtherance of in a few technical words changing the form justice, on such terms as shall be just, at any of action and in the amount of the ad dam- time before judgment," etc. The same chapnum. There is nothing to show here that ter further provides, in considerable detail, plaintiff in error would have put in other as to the pleadings that may be amended, or different evidence had it known earlier and section 7 states: of the change. [11, 12] Counsel for plaintiff in error further contends that, as the common-law record does not show that defendant in error actually filed a formal amendment to his declaration, in accordance with the leave of court, changing the form of the action from tort to assumpsit, the allegations of the declaration are not sufficient to sustain the verdict and judgment. No question is made that the allegations of the declaration are not ample, if proved, to sustain the verdict and judgment. The only point is that the original declaration was not properly amended so as to make the technical part an action in assumpsit rather than in tort. As in the case of common carriers of passengers, a common carrier of goods and merchandise may be sued for an injury to merchandise damaged by his negligence, either in assumpsit for breach of the contract, express or implied, to carry the goods safely, or he may be sued in an action on the case for the wrong. 3 Hutchinson on Carriers (3d Ed.) § 1403; Chudnovski v. Eckels, 232 Ill. 312, 83 N. E. 846. Manifestly, the allegations in the declaration in either form of action, in a case of this kind, would be substantially the same; the only difference in the form of the declaration being a technical one as to stating the form of the action. Counsel for defendant in error presented, the actual amendment to the declaration they desired to make, and the court entered an order granting leave to so amend. Plaintiff in error thereafter filed the general issue in assumpsit. The case was later submitted to the jury, and considered and passed on by them as if the declaration were in assumpsit. "Where there is an order granting leave to amend, and the subsequent proceedings in the cause are based upon the assumption that the amendment has been made, the course is to consider the order as standing for the amendment itself. Where a motion to amend has been granted, but no amended pleading appears in the judgment roll, it may be treated, on appeal, as if actually made." 1 Ency. of Pl. & Pr. 641. This is the rule adopted in most jurisdictions in this country. 3 Am. & Eng. Ency. of Law, 813, and cases cited; Horne v. Meakin, 115 Mass. 326; Johnston v. Farmers' Fire Ins. Co., 106 Mich. 96, 64 N. W. 5; Holland's Heirs v. Crow, 34 "The omissions, imperfections, defects and variances in the preceding section enumerated, and all others of a like nature, not being against and not altering the issue between the parties or the right and justice of the matter of the suit, the trial, shall be supplied and amended by the court where the judgment shall be given, or by the court into which such judgment shall be removed by appeal or writ of error." To consider this amendment on this record as actually made in no manner affects the merits of this cause, neither is it against "right and justice." This court has repeatedly held that the failure to file a plea would be cured, under this statute, by verdict. Brazzle v. Usher, Breese, 35; Graham v. Dixon, 3 Scam. 115; Armstrong v. Mock, 17 Ill. 166; Kelsey v. Lamb, 21 Ill. 559; Stumps v. Kelley, 22 Ill. 140; People v. Lindblom, 215 Ill. 58, 74 N. E. 73. It has been held, also, that where the representatives of a deceased party to the action are made parties on motion, it is unnecessary to amend the declaration formally by the insertion of their names. Hoes v. Van Alstyne, 20 Ill. 202. In Deutsch Central Verein v. Lartz, 192 Ill. 485, 61 N. E. 487, it was held that where a motion was made to amend the demurrer, when it purported to be for all the defendants, and make it a demurrer for one defendant only, the order of the court allowing this amendment was all that was necessary, without formally making the amendment in the pleading. [13] Counsel for plaintiff in error relies on the rulings of this court in Wisconsin Central Railroad Co. v. Wieczorek, 151 Ill. 579, 38 N. E. 678, Landt v. McCullough, 206 Ill. 214, 69 N. E. 107, and like cases, in which objections were made to the introduction of certain evidence on the ground of variance between the allegations and the proof; leave being given to amend, but no amendment being actually made. This court held that there was a variance between the allegations and the proof, and the amendment could not be considered as having been made on the record in those cases. There is nothing to show in those cases that the parties proceeded as if the amendment had been actually made, as they did in this case. We do not think the ruling in that class of cases is controlling here. The amendment here was actually offered and is in the record. It did not in any way change the character of the proof, either for plaintiff or [ant in error, William E. Fisher, resided at defendant. Counsel for plaintiff in error Hammond, in the adjoining county of Piatt. pleaded the general issue as if the amendment had been filed, and presented the case to the jury assuming that said amendment had been made, and was in no way prejudiced on account of the failure to actually file the amendment. Under a reasonable construction of our statute on amendments, and by the weight of authority in this and other jurisdictions, we think, on this record, that the failure to file the amendment should not cause the reversal of this judgment. He had been a farmer all his life, but was also interested in real estate to some extent. During the year the agreement was made he was the manager of a coal mine. Burks, shortly before negotiating with Fisher, became the owner, by purchase, of a farm of 160 acres in Lee county, Ill. Fisher at that time owned 600 acres of timber land in Yazoo county, Miss. After some negotiations between the two, who seem to have known each other for years, they entered into a The judgment of the Appellate Court will contract which provided, in substance, as folbe affirmed. [Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. §§ 40, 52; Dec. Dig. 36(1).] 2. EQUITY 327-PLEADING-VARIANCE. One is not entitled to recover in equity unless there are averments in the bill to support the evidence. [Ed. Note.-For other cases, see Equity, Cent. Dig. §§ 651, 652; Dec. Dig. 327.] Error to Circuit Court, Macon County; William K. Whitfield, Judge. Suit by William E. Fisher against Charles A. Burks and others. From a decree for complainant, respondents bring error. Reversed and remanded. Charles C. Le Forgee, Thomas W. Samuels, and Stanley L. Pogue, all of Decatur, and George W. Black, for plaintiffs in error. Hugh Crea and Hugh W. Housum, both of Decatur, and W. G. Cloyd, of Bement, for defendant in error. lows: The first party, Fisher, agreed to con- "See note on reverse side of this page, which is a part of this contract and equally binding upon both parties." On the reverse side of the contract was the following in writing: "The party of the second part further agrees to level up floors, block up foundation, patch holes in plaster, put in new windows, and paint the house which he is transferring, one coat of paint, and to make a deal on said 160 acres of land for the party of the first part within six months, free of commission; and, should he de fault in making such a deal, sale, or trade within six months, he will give the party of the first part the option of trading back upon the same basis as stipulated in this contract, provided that first party be entitled to receive not less than $16,000 from any sale, trade, or deal made by said second party on account of said prem CARTER, J. This was a bill filed in the circuit court of Macon county by defendant in error against plaintiffs in error for the reconveyance of certain land, under an agree-ises, in cash, or part cash and balance property." ment entered into by the parties. After the pleadings were settled the cause was referred to a master in chancery to take evidence and report his conclusions of law and fact. The master recommended that the bill be dismissed for want of equity. On exceptions filed the chancellor overruled the master's report and entered a decree giving the relief prayed in the bill. From that decree this writ of error was sued out. This was signed by both parties, but not sealed. Neither wife signed the contract or the addition on the back. On March 28, 1908, Fisher and wife conveyed to Burks, by warranty deed, the Mississippi land at a consideration of $7,500, and Fisher executed a promissory vote, dated April 15th, in favor of Burks, for $3,100; the incumbrance on the Lee county land having been found to be $100 less than as stated in the contract. Burks and wife on April 2, 1908, executed to Fisher a warranty deed for the Lee county land for a consideration of $16,000, subject 'Defend- to the incumbrance of $5,500. Plaintiff in error Charles A. Burks in 1908 was a real estate broker in Decatur, Ill., and dealt in real estate in that neighborhood and in other parts of Central Illinois. bid in by Fisher, and a deficiency decree rendered against Burks, in favor of Fisher, for $3,915.46. Later a bill was filed in Mississippi to set aside the deed of the Mississippi land to Fisher. The history of that litigation, which we deem immaterial, is argued at some length in the briefs. In 1914 Judge Whitfield, who had succeeded Judge Johns as circuit judge, on motion entered the original decree nunc pro tunc as of March 24, 1913. The sale and deficiency decree appear to have been based upon the nunc pro tunc decree. The testimony taken before the master is | interest in the Lee county land was sold and quite voluminous as to what was said and done both before and after the contract was signed. Several conversations took place between the parties as to Burks' procuring a tenant for the Lee county farm and as to whether he told Fisher that he could get one at $5 per acre. The most of the testimony, however, refers to efforts by Burks to obtain a trade for Fisher so that he could dispose of the Lee county land and realize $16,000. Numerous propositions were submitted by Burks to Fisher-the testimony tends to show more than two hundred-but Fisher did not consider more than five or six of them. The testimony tends to show that he was satisfied with the terms of one of these, but found that a third party, interested with him in business and from whom he expected to receive assistance, did not care to join in the trade, and therefore he refused to proceed and it was not closed. These negotiations were carried on several months after the time limited in the contract for the procuring of such a trade. In May, 1910, Fisher filed this bill, asking for a reconveyance of the Mississippi land and offering to reconvey the Lee county land, and that Burks pay back the $3,100, the amount of the note given by Fisher at the time of the trade. The master reported as to the making of the contract and Burks' attempts to make a trade of the Lee county farm, as provided on the back of the agreement. The master also found that the 600 acres of land in Mississippi was timber land from which most of the timber had been cut, and was unproductive and raw, and not worth more than $5 an acre; that the Lee county farm was reasonably good land, worth $75 an acre; that Burks had endeavored diligently for months to make some kind of a trade which would include Fisher's Lee county land; that he had procured one deal which was at first satisfactory to Fisher, but which failed of being consummated because of the refusal of Fisher and those associated with him to agree on the terms; that Burks had carried out his part of the agreement to fix the buildings on the Lee county farm; that the contract was lacking in mutuality; and that the bill should be dismissed for want of equity. The original decree was signed by Judge William C. Johns and filed with the clerk in vacation in July, 1912. It found that Fisher was in equity the owner of the Mississippi land, and Burks the owner of the Lee county land; that Burks should pay the master, for Fisher, $5,107.33 and in default of conveyance being made by the respective parties the master should execute a deed of the Mississippi land to Fisher and sell the interest of Burks in the Lee county land to make the amount of the decree costs, and expenses. A deed was thereafter made by the master to Fisher of the Mississippi land, and Burks' Counsel for plaintiffs in error insist that the above decree is wrong: (1) Because it is based, in part, upon fraud when there is no allegation of fraud in the bill; (2) because it is based, in part, upon inadequacy of consideration; (3) because it lacks mutuality; (4) because the original contracts were not signed by the wife of each contracting party, and therefore specific performance could not be granted; (5) time being the essence of the contract, it was waived by the laches of defendant in error; (6) the original decree was void because filed in vacation, contrary to the statutes, and therefore the nunc pro tunc decree was void. [1, 2] The decree finds that the contract was procured through fraud and misrepresentations on the part of Burks. Apparently this part of the decree is based on certain testimony offered for the defendant in error that Burks had promised that he could turn the Lee county land on a trade at $100, and that it would rent for $4 or $5 an acre, whereas the testimony showed that those figures were too high. In our judgment, Burks' statements were only in the nature of expressions of opinion rather than statements of fact; that he thought he could rent the land for the amount stated and trade it for $100 an acre. Such statements are not fraudulent misrepresentations sufficient to avoid a contract. Tryce v. Dittus, 199 Ill. 189, 65 N. E. 220. But, if it be assumed for the purposes of this case that the evidence tended to prove fraud, the relief here could not be granted on that ground; as there are no allegations of fraud or misrepresentation in the bill. It is a fundamental principle of law that a party must stand or fall by the material allegations of his bill. He cannot be permitted to state a case one way in his bill and make another and different case by the testimony. The allegations of the bill, proof, and the decree must correspond. One is not entitled to recover unless there are averments in the bill to support the evidence. Fish v. Cleland, 33 Ill. 238; Carmichael v. Reed, 45 Ill. 108; Stearns v. Glos, 235 Ill. 290, 85 N. E. 335; Wilson v. Wilson, 268 Ill. 270, 109 N. E. 36. We are also of opinion that the decree cannot be sustained on the ground of inadequacy of consideration. The weight of the |