Opinion
Civ. No. 2405.
September 3, 1918.
APPEAL from a judgment of the Superior Court of the City and County of San Francisco. Bernard J. Flood, Judge.
The facts are stated in the opinion of the court.
Louis H. Brownstone, for Appellant.
Devoto, Richardson Devoto, for Respondent.
This is an appeal by the defendant from a judgment in favor of the plaintiff in an action for the sum of $450, the agreed price of a certain automobile.
With respect to the appellant's contention that the complaint contains no sufficient allegation of nonpayment, the allegation criticized is that the amount claimed has been demanded and refused, and that "the whole thereof is now due and owing from said defendant to said plaintiff." Standing alone this perhaps is not a sufficient allegation of nonpayment ( Ryan v. Holliday, 110 Cal. 337, [42 P. 891]), but the defendant in its answer supplied the defect in the complaint by specifically alleging that the amount of plaintiff's demand had been paid in full. Aside from this, however, the case was tried upon the theory that such nonpayment was an issue in the case. For these reasons the defendant cannot now be heard to successfully question the sufficiency of the allegation of nonpayment. ( Schwind v. Hall, 129 Cal. 40, 43, [ 61 P. 573].)
On the question of the sufficiency of the evidence to sustain the findings of the trial court, it is sufficient to say that we have carefully read the record, and find appellant's contention in this regard to be without merit. It is true that the bill of sale of the automobile was taken in the name of one Udall. Still he was the manager of the defendant corporation, and the automobile was at once put into use by Udall in the business of the defendant, and was so used for ten months and until it was wrecked in a collision. Repairs thereto at the instance of Udall were charged to and paid by the defendant. Much of the testimony introduced on behalf of the defendant failed, for obvious reasons, to commend itself to the favorable consideration of the court, and was of a character which tended in effect to support the plaintiff's case.
The judgment is affirmed.