The parties to this proceeding will be referred to as they appeared in the trial court. Appellants will be referred to as plaintiffs, respondents as defendants.
By the terms of a written contract entered into on the 20th of February, 1950, defendants T. D. Foster, Jr. and the Foster Company, agreed to sell and plaintiffs agreed to buy the North 30 ft. of Lot 3, and the South 20 ft. of Lot 4, Block 7, Homeland Addition to Burley, Idaho, for a consideration of $7,100. The contract of sale and receipt for the down payment of $800 was signed:
“The Foster Co.
T. D. Foster, Jr.,
Seller”
The complaint set out the contract haec verba, alleged performance in full on the part of the plaintiffs, and failure and refusal of defendants to perform, asked for damages for failure to timely comply and that the contract be specifically performed.
The complaint further alleged that the Foster Company was a co-partnership, that the defendant T. D. Foster, Jr. was the owner of the legal title to the property, and the Foster Company was the equitable owner.
The answer was a general denial. No affirmative defense was alleged.
*535At the time the contract of sale was entered into, the Foster Company or T. D. Foster, Jr., did not own the premises in controversy. Whatever title the defendants, or either, had in the property at the time of the trial was acquired by it or him subsequent to entering into the contract of sale.
On evidence introduced, the court found that the. defendant T. D. Foster, Jr. was doing business under the name of the Foster Company, and was the owner of the premises described in the complaint; that the contract in question was entered into between the parties; that the plaintiff had paid $800 on the purchase price; that the balance was to be paid by a Federal Housing Administration Loan in the sum of $6,300 to be paid monthly for 240 payments; that the property was to be conveyed by warranty deed, and bill of sale, free and clear of incumbrances, with certain unimportant exceptions. The court found that the Foster Company did not exist except as a trade name of the defendant Foster, and that it did not agree to convey said premises to the plaintiff.
The court further found that the plaintiffs had demanded compliance of the contract on the part of the defendant Foster, and that he had failed and refused to execute and deliver a deed conveying the property in question; that plaintiffs, so far as they were able, without default on their part, timely did and performed all things required of them by the contract of purchase, and plaintiffs have been and are ready and willing to execute all documents required of them by the contract upon delivery of the deed to said premises, and that there was no failure on the part of the plaintiffs timely to do or perform any act required of them; that the agreement provided for the construction and completion on or before May 1, 1950, of a dwelling house on the premises so sold and purchased, and such plans and specifications had been approved by the Federal Housing Administration; that the dwelling house was not completed or placed in such condition as could be used prior to September 6, 1950, and possession of the premises was not at any time surrendered or delivered to the plaintiffs.
The court found that plaintiffs had made a further payment of $70 on the purchase price because of a change in the original plans and specifications of the dwelling so constructed, and found that the use and occupation of the dwelling house in question was worth the sum of $60 per month.
The court concluded that the receipt and agreement to purchase was not a valid and enforceable contract against the Foster Company, a copartnership, for the reason that the Foster Company did not at any time exist as a copartnership, and further concluded that whether or not T. D. Foster, Jr. was liable on the contract in question was not within the issues, and that by reason of the non-existence of the entity whose contract as seller is alleged in the *536complaint, namely the Foster Company, the trial court cannot conclude that the receipt and agreement to purchase was breached by the Foster Company, and declined to rule whether or not T. D. Foster, Jr. was personally liable; further that by reason of the non-existence of the entity whose contract said “Receipt and Agreement to Purchase” is alleged to have been executed, plaintiffs are not entitled to a decree of specific performance, or to recover damages.
The court then concluded the plaintiffs should have back the money paid in the sum of $870, together with interest.
Plaintiffs contend that on the find ings thus made, they are entitled to a decree of specific performance and for damages for the failure of defendants to timely comply with the terms of the contract.
“ * * * Contracts, obligations, and transactions entered into under an assumed or fictitious name are valid and binding * * * if there is no doubt with respect to the identity of the person acting under the assumed or fictitious name. Their validity as to third persons does not depend on whether the person contracting is as well known by the assumed name as by his true name, but on whether, with respect to the particular transaction, the name is used in good faith by the person adopting it as a descriptio personae.” 69 C.J.S.Names, § 9a, p. 10.
In this case, the identity of the defendant Foster as being the same person as the Foster Company or as Thomas D. Foster, Jr., was established by findings of the court. Contracts for the sale of real estate cannot be avoided on the extremely technical grounds advanced here. Such contracts between seller and purchaser are not entered into for the purpose of trapping the unwary, unskilled, gullible, credulous, misinformed, trusting buyers. Whether the title to the real estate in question is owned by the defendant, T. D. Foster, Jr., or the Foster Company, as a co-partnership, or a trade name, is of no importance. Both were made defendants to-the action and filed a joint answer. When the action was commenced plaintiffs had reason to believe that the Foster Company was a copartnership. The fact that it developed during the trial that it was a. trade name is inconsequential for a determination of the rights of the parties to the contract. Plaintiffs had no way of knowing the identity of the Foster Company until the court made findings of fact.
Defendants contend that whether or not defendant Foster and the trade name of the Foster Company could be required, to convey the property in question pursuant, to the terms of the contract is not within the issues. With this contention we do-not agree.
The complaint asked that the property be transferred to the alleged copartnership*537of the Foster Company and by it to the plaintiffs, or in the alternative, directly to plaintiffs, and further asked for general relief as plaintiffs might be entitled to.
It was within the jurisdiction of the trial court to grant any relief consistent with the proof and embraced within the issues where an answer is filed and a matter is tried on the merits.
Sec. 10-704, I.C. reads:
“The relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint; but in any other case the court may grant him any relief consistent with the case made by the complaint embraced within the issue.”
The question involved in this case is whether or not the defendants, either or both, have bound themselves, or either, to perform the obligations contained in the contract. We hold that they have.
The terms of the contract, and the identity of the parties were fully established. The court had jurisdiction to grant the relief sought, or other relief consistent with the proof. Schlieff v. Bistline, 52 Idaho 353, 15 P.2d 726; Burke Land & Livestock Company v. Wells Fargo & Co., 7 Idaho 42, 60 P. 87; Dover Lumber Company v. Case, 31 Idaho 276, 170 P. 108; Dennis v. Cooperative Pub. Co., 46 Idaho 534, 269 P. 82.
Where a court has acquired jurisdiction to make equitable disposition of a case, he has jurisdiction to do equity even though its disposition may be grounded upon some theory not set forth in the pleadings. Stearns v. Williams, 72 Idaho 276, 240 P.2d 833; Parsons v. Kootenai Rural Electrification, 71 Idaho 510, 234 P.2d 828.
In this proceeding no showing was made and the court did not find that the defendants could not perform. No affirmative defense was alleged. Only a general denial was pleaded. See Wormward v. Taylor, 70 Idaho 450, 221 P.2d 686. The facts on the issues thus joined were found against the defendant. A trade name or a descriptio personae cannot be used for the purpose of avoiding a liability voluntarily assumed and thus perpetrate a fraud on an innocent, unsuspecting purchaser.
The judgment is reversed with instructions to the trial court to enter a decree granting specific performance of the contract in accordance with its terms and for the damages suffered by the plaintiffs for defendants’ failure to timely comply. Should it develop for any reason, that the defendants cannot comply with the contract according to its terms, then the court to find and fix the damages suffered by plaintiffs by reason of defendants’ failure or inability to perform. In fixing damages suffered by plaintiffs the court may, if it seems desirable, take further testimony as to such damages. Costs to appellants.
GIVENS and TAYLOR, JJ., concur.