The record-union., 1891-03-12

as if the issue had been made by the
pleadingS, and in such manner as may
have induced the other party to believe
that the issue had been properly made
or diverted his attention from the fact
that it was not made by the pleadings.
1t would seem that some of the de-
ciSions in the class of cases under con-
Sideration have gone to the verge of the
province of waivers and equitable estop-
pels, and press to encroach upon the do
main OF the law of pleading and evidence,
particularly Sections 462, 5SS, $50 and 500
of the Code of Civil Procedure. Section
$50 provides: IAN issue of fact arises
l. Upon material allegation in the COM
plalnt controverted by the answer"
and Section 462 provides !:
Every material allegation of the COM
plant not controverted by the answer
must, for the purposes OF the action, be
taken to be true.''
1t is not within the discretionary power
OF any court to dispense with these pro-
visions, yet they are moi violated by a
decision of the appellate court, that
party, by his conduct at the trial, is
estopped from asserting, on appeal, for
the first time, that a fact found by the
trial court was not within the issues made
by the pleading, since such a decision
assumes that the fact found was within
the issues, and its propriety can he ques-
toned only upo, the ground that the
facts OF record are insufficient to create
the alleged estoppel. Doubtless the facts
should be of u natnre and effect similar to
! those required to effect an estoppcl an
pas IN other eases; but, upon super
ficlal view, there is a seeming conflict in
the cases as to how the facts shall be made
to appear. Must the conduct OF the party,
which eStopS him, positively appear upon
the record? or, may it be presumed for
the mere purpose of upholding the de-
cision of the trial court? We have seen
that the cases Of Burnett VS.. Stearns.
Gregory VS.. Nelson and In re Doyle are
expressly opposed to any such presurp-
ton; but in the case of Horton VS.. Do
mingueS (6S Cal. GID. cited by respondent.
there is q dictum, at least, in favor of such
presumption. In this last ease it was
conceded that the agreement pleaded and
relied upon by the defendant in his cross
complaint was void, but the court found
a subsequent agreement, which was not
pleaded, which is fully set out in the find
ing, and in accordance with which iudg-
ment was rendered. This court, by MIR
Justice Thornton, said:
1T IS objected that the finding is not
within the issues. AS the record shows
nothing to the contrary, we must presume
th;tt testimony was introduced to estab-
Ish the facts found by this finding. 1t
does not appear that any objection was
made by the plaintiff to the evidence that
it was inadmissibe under the pleadings
as not being within the issues Joined.
AS the record stands, it appears that the
cause was tried as if the agreement found
was put in issue. Under such circum-
Stances, we cannot permit the objection
to be now made that this finding is of
matters outside of the issues Joined in the
cause. 1t should not be permitted that
the plaintiff should allow the cause to be
tried as if issues are regularly Joined, and
I hon tl,A ~ a.
nlS claims, urge in this court that no such
issue was made IN the court below"
This case is not fully reported. By re-
| ferrlng TO the original record it will be
seen that the subsequent agreement was
(imperfeetly) pleaded, and that the judg-
ment-roll contains bill OF exceptions
showing that testimony sufficient to ius-
tity the finding of the subsequent agree
ment was introduced by the defendant
without objection, on the ground that the
subsequent agreement was not pleaded
Therefore, there was no occasion or room
for presumption that Testimony was in
troduced TO establish the facts found, by
the finding set out in the opinion, as TO the
| subsequent agreement. Farther on the
learned Justice says: CAS- the record
stands ~ appears that the cause was tried
as If the agreement found was put in
issue" This must be understood as
referring to the evidence contained in the
OIL OF exceptions. so understood, it
shows that the learned Justice did not
rely upon any presumption to establish
the fact that testimony was introduced,
without objection, to prove the subse-
quent agreement on which the Judgment
rested.
In the judgment-roll of the case at bar
there is no bill of exceptions, nor any,
| thing to show that any evidence was in
troduced tending to prove subsequent
or other contract than that alleged in the
complaint and not denied in the answer. or
tending to show, contrary to the admis-
sion OF the pleadings, that the deed of
January %, 1889, from plaintiff to de-
fendant, correctly recited the full consid-
GRAFTON for the conveyance.
Perhaps the plea of payment, in the alb
sence Of a special demurrer, sufficiently
rendered an issue as to payment; but the
findings show that the only payment by
defendant was Sl,500, made by liquidat-
ing and discharging debts due by plaint-
III to various persons, amounting to
Sl,625, by consent of plaintiff thus
leaving a balance of the contract price
due the plaintiff of at least 81 1875.
l think the judgment should be re-
versed and the cause remanded for new
trial, with leave to the parties to amend
their pleadings if they so desire.
VAN CLIEF, C.
We concur:
BELCHEE, c.,