delivered the opinion of the court.
Various points are here urged by counsel for defendant as grounds for a reversal of the judgment. Counsel’s main-point is, however, that the court erred in admitting in' evidence the said diversion orders *451(plaintiff’s exhibits 1 and 2), because they showed a contract between the parties different and at variance with the contract as averred in the several counts of the declaration, and in not granting defendant’s motion, made at the close of plaintiff’s testimony, to exclude all of plaintiff’s evidence because of such variance. We are of the opinion that the point is well taken.
It is well-settled law that a plaintiff must prove his case as alleged in his declaration. (3 Hutchinson on Carriers, sec. 1326; Central Railroad & Banking Co. v. Tucker, 79 Ga. 128; Franklin Ins. Co. of Indianapolis v. Smith, 82 Ill. 131, 132.)
In the present case, though no bill of lading was introduced in evidence, plaintiff’s evidence showed that the cantaloupes were carried from Turlock, California, to Chicago, Illinois, over several different connecting railways, of which defendant was not one, in car P. F. E. 13088, under a contract, made August 20, 1916, for their safe carriage and safe delivery to plaintiff at Chicago, to which contract defendant was not a party; that the Tidewater Southern Eailway was the initial carrier and the Chicago, Milwaukee & St. Paul Eailway the delivering carrier; that the car arrived in Chicago and was placed on the Kinzie street tracks of the latter railway on August 28, 1916,—the contents of the car then being ready for delivery to plaintiff; that after such arrival and on the same day plaintiff, by written order, diverted said car to a new consignee in New York; that in accordance "with said order the Chicago, Milwaukee & St. Paul Railway caused the car to be delivered to defendant at Elsdon, Illinois, on the evening of August 29, 1916, and defendant accepted it to be hauled to New York; and that on August 30,1916, plaintiff, by written order, directed that the cantaloupes, which had in the meantime been transferred to another car, be returned to plaintiff at Chicago via the defendant railway. We think that when *452the car P. F. E. 13088 arrived on the Kinzie street tracks óf the Chicago, Milwaukee & St. Paul Railway, the original contract of carriage made August 20,1916, was completed; and that, when said car’was diverted to New York by plaintiff’s written order, dated August 28, 1916, which order was accepted and acted upon, a new contract of carriage was made. (Deatwyler v. Oregon R. & Nav. Co., 176 Ill. App. 597, 602 ; 2 Hutchinson on Carriers, sec. 660.) Plaintiff, in all counts, declared on the original contract of carriage, made August 20, 1916, but the diversion orders offered and admitted in evidence over defendant’s objection, and other evidence, disclosed a case at variance with the averments of the declaration.
In view of our holdings, requiring the reversal of the judgment and the remanding of the' cause, it is unnecessary for us to discuss the other points urged (1), that there' is no evidence that the cantaloupes were in good condition when delivered to defendant from the Chicago, Milwaukee & St. Paul Railway, via the Belt Railway, and (2), that after defendant received the order to redivert the cantaloupes back to Chicago it held them, not as a common carrier, but as a warehouseman.
Reversed and remanded.
Barnes, P. J., and Matchett, J., concur.