H. Hackfeld & Co. v. K. Yamamoto

CONCURRING OPINION OP

QUARLES, J.

I concur in the conclusion in this case, but in doing so do not desire to be considered as regarding the evidence upon which the findings of the trial court is based as being within the issues made by the pleadings. In my opinion the complaint should have alleged the partnership, the survival of the defendant, and a sale and delivery to the partnership. However, the failure of the defendant to raise this question, and his stipulation of the facts shown by the record, may be treated, after judgment, as curing the failure to allege the partnership, sale and delivery thereto, and survival of the defendant; and, as having waived the question.

The defendant contends that the evidence does not show a delivery of the goods sold by plaintiff to the partnership, and therefore the judgment is against law and the evidence. In my opinion the circumstances proven by the evidence are sufficient to justify, in the absence of evidence to the contrary, the finding that the goods were sold and delivered to the partnership. The partnership had one business, and one place of business, a boarding house at Castner; the goods were shipped to Eichler at Castner; there is no evidence tending to show that Eichler was interested in any other business, or used the goods for his own personal benefit.