Helms

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 executed by the partnership. Plaintiffs’ names appear in the title of the complaint as individuals merely, but in the body of the complaint it is alleged that the plaintiffs, as copartners, manufactured the grape stakes; that thereupon each became the owner o£ one-half thereof, and that Helms, acting for both, sold them to defendant. While the pleading is not a model, it is difficult to see in what manner defendant has suffered prejudice from any defect therein. A variance is not “to be deemed material, unless it has actually misled the adverse party to his prejudice.” (Code Civ. Proc.,…