Helms v. Pacific Mill Timber Co.

Plaintiffs, alleging that they were co-partners, sued for the recovery of the agreed price of certain grape stakes sold to defendant. In appellant’s opening brief it is argued that the court erred in denying defendant’s motion to strike out the fourth amended complaint, but in the reply brief it is admitted that such objection is not tenable on this appeal.

[1] It is urged that there is a fatal variance between the allegations of the complaint and the proofs, in that plaintiffs sue as individuals and allege a contract made by them as individuals while the evidence shows that the eon- tract was…