Gaffny v. Michaels

CRAIG, J.

It was alleged in the complaint filed by respondent, and admitted by the answer thereto, that on or

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about the second day of January, 1921, the appellant purchased from respondent and the latter’s assignor certain capital stock of the Santa Monica Soft Water Company, a corporation, and that appellant then agreed to pay therefor, in addition to the stipulated sale value, such amount of profit as an audit of the company’s accounts might show to have been earned between August 28, 1920, and December 31, 1920: The plaintiff alleged that an audit was made by competent accountants, and that the amount thereby determined to have been earned during said period of time was the sum of $1,413.60, for which the plaintiff prayed judgment. The defendant denied that it was determined by said or any account, or that it was the fact, that any profit was so earned, or that he ever became or then was| indebted to the plaintiff on account of such purchase in any amount. !

The case went to trial upon the issues thus presented by the pleadings, and at the conclusion thereof the trial court' found that the allegations of 'the complaint were true, except as to the amount and the name of the corporation. Written findings were signed and filed wherein it was recited that from an audit of the books by a chartered public accountant it appeared that the sum of $1,413.60 had been earned upon said stock within the time specified, but that from oral evidence adduced at the trial it was found that defendant was indebted to the plaintiff under the terms of their agreement in the sum of $797.28.

This appeal is taken from the judgment solely upon the ground that the findings and the judgment do not conform to the allegations contained in the complaint.

Appellant’s brief raises no objection to the findings or judgment upon any attempted assertion that the evidence was insufficient to support them as to the amount of .indebtedness, or the fact that it was due. The complaint alleged that the corporation whose stock was purchased by appellant was that of the Santa Monica Soft Water Company, a corporation, but the findings recite that “ defendant purchased from plaintiff twenty-four hundred (2400) shares of stock in the Santa Monica Soft Water Laundry, a corporation.” Appellant contends that the judgment is based upon findings which nowhere mention or consider the company named in the complaint. Authorities are cited wherein