Gaffny

It was alleged in the complaint filed by respondent, and admitted by the answer thereto, that on or about the second day of January, 1921, the appellant purchased from respondent and the latter’s assignor certain capital stock of the Santa Monica Soft Water Company, a corporation, and that appellant then agreed to pay therefor, in addition to the stipulated sale value, such amount of profit as an audit of the company’s accounts might show to have been earned between August 28, 1920, and December 31, 1920: The plaintiff alleged that an audit was made by competent accountants, and that the amount thereby determined to have been earned during said period of time was the sum of $1,413.60, for which the plaintiff prayed judgment. The defendant denied that it was determined by said or any account, or that it was the fact, that any profit was so earned, or that he ever became or then was| indebted to the plaintiff on account of such purchase in any amount. !

The case went to trial upon the issues thus presented by the pleadings, and at the conclusion thereof the trial court' found that the allegations of 'the complaint were true, except as to the amount and the name of the corporation.…

We concur. The record before us consists only of the judgment-roll. That record, in view of the permissible presumptions which may be indulged to support the judgment, fails to show that the trial court erroneously based its judgment upon a finding outside of the issues, even though the court did find that the stock was issued by the Santa Monica Soft Water Laundry instead of by the Santa Monica Soft Water Company, as alleged in the complaint. On appeal every intendment and presumption, not contradicted by or inconsistent with the record on appeal, will be indulged in favor of the judgment of the court a quo. There is nothing in the judgment-roll before us inconsistent with the presumption that respondent, when putting in his case, proved that .the stock was that of the corporation referred to in the findings, the Santa Monica Soft Water Laundry; nor is the record inconsistent with the further presumption that appellant did not object to such evidence on the ground of variance. The failure of a party to object to evidence upon the ground of variance between it and the allegations of Ms adversary’s pleading is a tacit admission that he is not misled by it to his prejudice in…