I concur in the judgment on the ground that the case having been tried and submitted to the court below on the theory that the pleadings did not contain a conclusive admission that the contestee, Treanor, received 4,862 legal votes, it is too late in this court to present a different *Page 320 construction of the pleadings, and claim here, for the first time, that the contestant is bound by the admission. (King v.Davis, 34 Cal. 106; Lee v. Figg, 37 Cal. 336;1 Hutchins v.Castle, 48 Cal. 156; Hughes v. Wheeler, 76 Cal. 230; Sukeforth v.Lord, 87 Cal. 403; Willey v. Crocker etc. Bank, 141 Cal. 518.) I do not agree with the construction put upon the pleadings in this respect in the principal opinion. I concur in all other points.
1 99 Am. Dec. 271.