This is an action for goods sold and delivered. The case was tried by the court sitting without a *Page 758 jury, and judgment went for plaintiff against the defendants. The appeal is from that judgment, taken within sixty days after the entry thereof under sections 941A, 941B and 941C of the Code of Civil Procedure.
The facts of this case are simple, and no question of difficulty is presented. The defendants claim that the goods were sold and delivered to the Ruinart Stock Farm, a corporation. Plaintiff, on the other hand, alleged in its complaint that the defendants were copartners, doing business under the name of Ruinart Stock Farm, and were liable as such for the goods and supplies furnished.
The evidence introduced by the defendants tended to prove that the goods were, as claimed by them, sold and delivered to the Ruinart Stock Farm, and in corroboration of this evidence it was shown by the plaintiff's books of account that the merchandise in question was in fact charged to the Ruinart Stock Farm. Plaintiff, however, introduced evidence that Gaston M. Ashe represented to the manager of the plaintiff that he, with his brother and codefendant, would be personally responsible for said goods; that upon being asked by said manager how the account should be charged, Gaston M. Ashe said that it had better be charged to the Ruinart Stock Farm, and accordingly the merchandise was so charged. There is no evidence in the record showing that the defendants were partners, and the court found they were not, and the record shows that Gaston M. Ashe had no authority to represent to plaintiff that R. Porter Ashe would be liable personally for the supplies furnished.
The complaint alleges that the defendants are liable as partners, while the findings are that there was in reality no such partnership, wherefore defendants suggest that the judgment should have been rendered in their favor. But they, in effect, denied liability as partners or individuals, and thus, it may be said, raised an issue not raised by the complaint, and one upon which an individual judgment might be based. (Flinn v. Ferry, 127 Cal. 648, [60 P. 434]; Vance v.Anderson, 113 Cal. 532, [45 P. 816]; Dobee Co. v. Keystoneetc. Co., 145 Cal. 491, [78 P. 1050].) However, it appearing that Gaston M. Ashe had promised to pay for the goods to be sold, it makes no difference so far as his liability is concerned that he was not a partner with R. Porter Ashe, or that *Page 759 the allegation of the partnership was not proved. (2 Bates on Partnership, sec. 1068; 1 Bates on Partnership, secs. 170, 171;Courson v. Parker, 39 W. Va. 521, [20 S.E. 583]; Weimer v.Rector, 43 W. Va. 735, [28 S.E. 716]; 15 Ency. of Pl. Pr. 955; Hunter v. Martin, 57 Cal. 365; Wallace v.Baisley, 22 Or. 572, [30 P. 432]; Marx Bros v. Calpepper,40 Fla. 322, [24 So. 59]; Whitwell v. Thomas, 9 Cal. 499.)
The court allowed interest at the rate of seven per cent per annum on the amount of the claim from the date it was found to be due. This was error. No interest can be recovered in an action for goods sold and delivered upon an open account prior to the filing of the complaint. (Pacific Mutual Life Ins. Co. v. Fisher, 106 Cal. 224, [39 P. 758]; Cox v. McLaughlin,76 Cal. 60, [9 Am. St. Rep. 164, 18 P. 100]; Heald v. Hendy,89 Cal. 633, [27 P. 67]; Easterbrook v. Farquarson, 110 Cal. 311, [42 P. 811]; Lane v. Turner, 114 Cal. 396, [46 P. 290].) Calculating interest at the legal rate on the principal sum found to be due from the date the complaint was filed until the judgment was rendered would give an amount less by the sum of $40 than the amount allowed as interest on the judgment.
There being no evidence to support the judgment against R. Porter Ashe, it must as to him be reversed, and it is so ordered. As we have just seen, however, there is evidence to support the findings against Gaston M. Ashe; and as to him the judgment is directed to be modified by deducting therefrom the sum of $40 as of its date of entry, and as so modified it is affirmed.
Cooper, P. J., and Hall, J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on April 7, 1910, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 29, 1910. *Page 760