116 P. 382 | Cal. Ct. App. | 1911
The appeal in this case is taken by defendant from the judgment, and is presented on the judgment-roll alone.
Plaintiff sued to recover a balance of $317.01, alleged to be due and unpaid on account of the purchase price of a crop of lemons. The judgment was for the amount prayed for. After trial, the court made and filed its findings of fact and conclusions of law. Thereafter the clerk entered judgment in the following form:
"Now, on this 25th day of August, 1910, upon and in accordance with the findings of facts and conclusions of law heretofore made and filed by the court in the above-entitled and numbered action, it was considered, ordered and adjudged by the court that the plaintiff, L. V. Hoover, do have and recover of and from said defendant, A. Lester, the sum of $317.00 with interest amounting to $24.00, together with his cost herein taxed at $16.00.
"W. R. GUY, "Judge of Superior Court." *153
One of the contentions made by appellant is that this entry of judgment is insufficient, and that it amounts only to a certificate of the clerk that the court did prior to the entry thereof make its findings. With this contention we do not agree. Section
Plaintiff in his complaint failed to aver a delivery of the lemon crop sold to defendant. That such an averment was essential to the statement of a cause of action seems to be admitted by respondent. However, defendant in his answer denied "that said plaintiff has at any time carried out said contract or delivered to said defendant said crop of lemons so contracted for." The court found that the lemons had been delivered. By his answer the defendant treated the complaint as tendering to him an issue as to the delivery of the fruit. On this appeal with only the judgment-roll to look to, where the finding is that there was a delivery, it must be assumed in support of this finding that evidence was introduced on that question. Defendant cannot now be heard to object that the complaint was deficient in failing to allege a delivery of the lemons. His answer treated the issue as having been properly made, evidence was heard on the subject, and the court made its finding in determination of that issue. It is too late, under such conditions, to object for the first time that the complaint fails to state a cause of action in the particular referred to. (Merrill v. Pacific Transfer Co.,
One more point is urged by appellant. He insists that the finding of fact is insufficient where the court finds "that on the fourteenth day of July, 1909, said plaintiff herein sold to said defendant a certain crop of lemons." The allegation of the complaint upon which this finding was made was in part as follows: "Plaintiff sold to said defendant his crop of lemons." It is the contention of appellant that as the identity of the lemons sold with those which were delivered was the main issue in the case, the finding of the court that the plaintiff sold a certain crop of lemons is not a finding that plaintiff sold "his" crop of lemons to defendant. The finding seems to be sufficient to identify the lemons as being the same as those described in the complaint. The mere use of the words "a certain crop of lemons," instead of the words employed in the complaint, to wit, "his crop of lemons," is not such a difference in descriptive terms as to warrant an inference being drawn that the crop sold might have been other than that delivered. In their closing brief counsel for appellant suggest on this point that the pleadings call for "his crop of lemons from his lemon orchard near Lakeside." This is hardly a correct statement of the issue. Plaintiff alleged merely that he sold "his crop of lemons"; defendant answered that allegation in the following form: "Admits that on or about the fourteenth day of July, 1909, said plaintiff sold to said defendant a certain crop of lemons from plaintiff's lemon orchard near Lakeside, in the county of San Diego." The phrase "from plaintiff's lemon orchard near Lakeside," included in the admission found in that paragraph of defendant's answer just referred to, was not an admission of anything that plaintiff had alleged, nor was it an affirmative allegation of any fact; it was a mere recital which should be disregarded.
The judgment is affirmed.
Allen, P. J., and Shaw, J., concurred. *156