I concur. The point suggested for the first time in the department opinion, heretofore filed, was, that the contract found by the court was not the contract sued upon, and was therefore outside of the issues in the case. The complaint alleged a contract made between plaintiff on one side and Purington and Trumbo on the other. The court finds nothing in regard to the contract averred by plaintiff and denied by both defendants, but does find that another contract was entered into between plaintiff and Trumbo alone. No such contract having been averred, defendants were not called upon to admit or deny it, — as a matter of fact did not deny it, — and were not called upon to refute it by evidence.
This is the argument, but it ignores some of the facts. The complaint avers the sale of certain goods and the suit is to recover the price of these goods. In effect, the averment is, that they were purchased by the defendants; the finding is, that they were purchased by Trumbo. There is no bill of exceptions, and, for aught we can know, the issue tried below, with the consent of all parties, was whether the purchase of these particular goods was made by Trumbo. And since the court has made the finding, and no objection was made below or here, we will presume that such was the case. (Churchill v. Baumann, 95 Cal. 541; Code Civ. Proc., sec. 469.)
The language of the complaint is not entirely irreconcilable with the proposition that the promise to pay for the goods may have been several, although a joint request was alleged. The implication is no doubt very strong that the promise was also joint. But since the parties went to trial upon the issue of the separate liability of Trumbo without objection, and even since the judgment neither in the court below nor in this court have made any such objection, we must suppose that the parties agreed that the issue tried was properly made by the pleadings.
McFarland, J., concurred in the concurring opinion. *Page 73