[No. 10112.

Department Two.

June 14, 1912.]

#### Frank Klain, *Respondent,*v. N. G. Kaufman, *Appellant.*
      *1*

Partnership—Existence—Advances for Share of Profits—Evidence—Sufficiency. A partnership is not shown where it merely appears that one agreed to advance the cost of operating a business belonging to another, in consideration of one-half the net profits, if any, the advances to be returned in any event.

Appeal — Preservation of Grounds — Objections — Variance. Error cannot be predicated upon a variance, where no objection was made to the admission of the evidence and the point was not suggested below.

Appeal from a judgment of the superior court for Chehalis county, Sheets, J., entered April 24, 1911, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.

Affirmed.

*J. C. Cross,*for appellant.

*Boner Boner,*for respondent.

Reported in 124 Pae. 213.

Fullerton, J.

This is an action for personal services, and for the value of certain farm products. In his complaint, for a first cause of action, the plaintiff alleged that the defendants Buttner and Kaufman were partners, engaged in the logging business, and that, between January 1, 1910, and August 1, 1910, he performed services for them as foreman of their logging camp at the agreed price and value of $1,055, no part of which had been paid. For a second cause of action he alleged that, during the time the defendants were operating their logging camp he furnished, at their special instance and request for the use of such camp,' butter, milk and vegetables, of the value of $374, which were likewise unpaid for. No services of process was had upon Buttner, and he did not appear in the action. Kaufman appeared and filed an answer in which he denied *36generally all the allegations of the complaint, and alleged affirmatively that, between January 1, 1910, and January 28, 1911, he advanced for the plaintiff’s use “in his logging scheme or business” the sum of $10,952.84 of which there had been repaid him the sum of $708.28 leaving a balance due and owing of $10,244.56 for which sum he demanded judgment against the plaintiff. A reply was filed putting in issue the affirmative allegations of the answer. On the issues made, a trial was had before the court sitting with a jury, which resulted in a verdict and judgment against Kaufman personally in the sum of $1,279.20. This appeal is from the judgment so entered.

But one question is suggested by the appellant, namely, the regularity of the verdict and judgment. It is contended that the evidence on the part of the plaintiff followed the allegations of his complaint and tended to show that the defendants were partners conducting the logging business as a partnership; and that, if either of them was liable for the plaintiff’s wages and the advancements made to the logging camp, both of them were liable; hence the verdict and judgment should have been entered against both of the defendants, to be satisfied out of the partnership property of both of them and the separate property of the defendant served.

But we cannot agree with the appellant as to the effect of the evidence. As we read the record, there is little or no evidence on the part of either the plaintiff or the defendant that a partnership relation ever existed between Buttner and Kaufman. On the contrary, the evidence of both sides is to the effect that Kaufman, instead of being a partner of Buttner’s, succeeded to Buttner’s interests by assignment from Buttner; that the agreement concerning the business was first entered into between Klain and Buttner and that Kaufman afterwards purchased Buttner’s interest and assumed Buttner’s obligations under the contract. The real contest between the parties was over the terms of the con*37tract. Klain insisted that the business was first Buttner’s, then Kaufman’s, and that he was an employee first of the one and then of the other, at a wage of five dollars per day with the right to receive one-half of the net profits of the business after all the expenses were paid; while Kaufman insisted that the business was Klain’s, and that he simply agreed to advance the cost of operating the business in consideration of one-half the net profits of the business should any profit accrue, but his advancements were to be returned nevertheless. The jury accepted Klain’s version of the agreement, and since that version is supported by substantial evidence, it is of course conclusive upon us here.

It is manifest from the foregoing that the verdict is in accord with the real issue, and the issue that was actually tried out to the jury, and hence is not subject to be set aside because not in accordance with the facts. It has seemed to us that the real question is whether there was a variance between the allegations of the complaint and the proofs of the plaintiff, but this question we shall not discuss as it was clearly waived by the defendant. Not only did he fail to suggest it at the trial, but he permitted the evidence of the real relations of the parties to be submitted to the jury without objection, and he is now bound by their verdict.

The judgment is affirmed.

Dunbab, C. J., Mount, Mobbis, and Ellis, JJ., concur.