Action for Goods Sold and Delivered—Complaint—Sale to Other Defendants—Assumption by Corporation—Negative Special Verdict—Inconsistent General Verdict.—Where the complaint in an action for goods sold and delivered alleges a sale and delivery to defendants other than the corporation defendant, and that such corporation assumed, the liability of such other defendants, a nega-

tive special verdict that no sale or delivery was made to such other defendants is inconsistent with a general verdict against the corporation. defendant, under the allegations of the complaint, and the general verdict cannot be upheld. The plaintiff is bound by the material allegations of his complaint; and the sale and delivery alleged is material to. the alleged liability of the corporation.

Id.—-Special Finding Controlling General Verdict.—Where a special finding o-f facts is inconsistent with the general verdict, the former controls the latter, under section 625 of the Code of Civil Procedure and the court must give judgment accordingly.

Id.—Liability of Corporation Dependent on Novation.—The corporation defendant became liable for the debt, if at all, by reason of a novation, in assuming the obligation that had been incurred by the other defendants in their purchase of the goods alleged to have been sold and- delivered to them.

Id.—Effect of Elimination of Averment of Sale and Delivery-—Insufficient Complaint.-—If the averment as to the sale and delivery of the goods to the other defendants be eliminated from the complaint, it would fail to state a cause of action against the corporation defendant.

Id.—Effect of Other Findings Only—Nonsupfort of Judgment— Material Special Verdict.-—If findings should be made upon the other allegations only, they would be insufficient to- support the judgment. Therefore, the response of the jury upon the allegation o-f sale and delivery to other defendants involves a matter of vital importance to the determination of the cause.

Id.—Estoppel of Corporation by Conduct—Pleading—Materiality of Averment as to Sale.—The contention of the plaintiff that the Corporation defendant is estopped by its conduct in not denying its liability for the goods sold, and in leading plaintiff to believe that there was only a dispute as to the amount it should pay is no-t tenable, where no estoppel is pleaded, and such question is not properly in the case. Nor could1 such conduct affect the materiality o-f the averment as to- sale and delivery of the goods, although it may have-a bearing in the determination of that issue.

Id.—Ratification Limited to Contract of Assumption Alleged.— Though the question of ratification of the contract of assumption of liability by the defendant corporation is one of evidence, yet it must be limited to the cause of action alleged to assume liability for goods sold and delivered to the other defendants, and such ratified assumption can be of no avail to plaintiff, in view of the special finding of the jury, which establishes that the assumption never became effective as a contract.

Id.—Effect of Dismissal of Action as to Other Defendants—Immateriality—Proof of Purchase Alleged Required.—In. view of the allegations of the complaint, plaintiff clearly intended to rely upon a sale and delivery of the goods made to the other defendants originally joined with the corporation defendant, as the basis of its assumption of their liability; and the dismissal of the action as to such other defendants cannot affect or enlarge the liability of such corporation; but it must be still proved that the purchase was made by the other original defendants, as a condition of its liability denied in the answer.

Id.—Original Obligation not Immaterial Because Assumed.—The original obligation was not rendered immaterial because it had been assumed by another.

Id.—Inconsistency in Verdict—Special Verdict on Each Issue not Required—Conflict in Special Verdict.—Our practice does not require that there must be a finding upon each issue in a special verdict in order to render it inconsistent with a general verdict. Although there may be a conflict in the special findings themselves, yet such conflict would not alleviate or change the situation, since the finding in harmony with the general verdict cannot derogate from the effect of an adverse special finding upon a material issue.

Id.—Objection to Finding as to Sale and Delivery op Goods—Averment in Complaint.—Where the complaint alleges the" sale and delivery of the goods, plaintiff’s contention that a finding in the same form as such averment is of a conclusion of law and not of fact is unseemly. If the form of the statement is sufficient for the complaint, it should not be held lacking for the purposes of a special finding.

Id.—Sale and Delivery—Finding op Ultimate Facts.—A delivery is necessary to a sale, and though they might be found separately, when they are found together, the finding is of ultimate facts, and not of mere conclusions of law.

Id.—Time por Objection to Form for Special Verdict—Submission op Cause—Presumed Assent.—An objection to the form for a special verdict must be made at the time of submission of the questions to the jury; otherwise it will be presumed there was assent ■to the questions as presented.

Id.—Absence op Exceptions—Review upon Appeal.—Where no exceptions to the phraseology of questions in a special verdict are reserved, such exceptions cannot be considered on appeal

Id.—Improper Refusal op Court to Submit Material Question.— The refusal of the court to submit a finding upon appellant’s request upon the material question, “Did the original defendants other than the corporation defendant promise to pay for any of the goods claimed by plaintiff to have been sold and delivered?” was erroneous, and cannot be upheld on the ground that the action was dismissed as to them.

Id.—Disposition of Appeal—Failure of Appellant to Move fob Judgment on Special Verdict — Practice — Reversal.—Where the appellant failed to move in time in the trial eourfc for judgment in his favo-r on the special verdict, before judgment was entered against him on the general verdict, it is improper practice on appeal to order the judgment to be so entered; but the judgment and order denying a new trial must be reversed for error appearing in the record.