Helms v. Pacific Mill Timber Co.

FINCH, P. J.

Plaintiffs, alleging that they were co-partners, sued for the recovery of the agreed price of certain grape stakes sold to defendant. In appellant’s opening brief it is argued that the court erred in denying defendant’s motion to strike out the fourth amended complaint, but in the reply brief it is admitted that such objection is not tenable on this appeal.

[1]

It is urged that there is a fatal variance between the allegations of the complaint and the proofs, in that plaintiffs sue as individuals and allege a contract made by them as individuals while the evidence shows that the eon-

[444]

tract was executed by the partnership. Plaintiffs’ names appear in the title of the complaint as individuals merely, but in the body of the complaint it is alleged that the plaintiffs, as copartners, manufactured the grape stakes; that thereupon each became the owner o£ one-half thereof, and that Helms, acting for both, sold them to defendant. While the pleading is not a model, it is difficult to see in what manner defendant has suffered prejudice from any defect therein. A variance is not “to be deemed material, unless it has actually misled the adverse party to his prejudice.” (Code Civ. Proc., sec. 469.) “Where the variance is not material, as provided in the last section, the court may direct the fact to be found according to the evidence.” (Code Civ. Proc., sec. 470.) The court found that the contract as executed by plaintiffs as copartners.

[2]

In appellant’s brief it is said that if the partnership name had been alleged and “if the same was fictitious and no certificate had been filed as required by the Civil Code,” the defendant could have alleged such failure “and the matter would then have been delayed until the filing and publication of such certificate, if plaintiffs elected so to act.” The answer in no manner raised the question here urged and the evidence does not show under what name the partnership business was conducted or whether any certificate was filed. The record does not disclose that such objection was made at any stage of the case in the trial court, the contention there urged, on motion for nonsuit, being that the cause of action proved “is a partnership demand, and the action is prosecuted in their individual names.” The question cannot be raised for the first time on appeal.