Berringer

The plaintiff brought this action to recover from the defendant the sum of $859.56, an alleged balance due the plaintiff for work and labor performed by him for the defendant.

The answer consisted merely of specific denials of the allegations of the complaint, which is in the usual or ordinary form for the recovery of wages or debt for wages.

Judgment was awarded plaintiff for the sum of $705.66. This appeal is by the defendant from said judgment.

There is no contention in the briefs that the plaintiff is not entitled to the compensation for which he sues. The defendant’s contention is that the obligation sued on was that of a partnership of which he was a member and not his individual obligation, and that, although the answer does not plead- a defect of parties defendant, the case was, nevertheless, tried upon the part of the defendant upon the theory that the debt constituted a partnership obligation; that upon that theory the evidence does not support the finding that the contract of employment was made with the plaintiff by the defendant as an individual.

Section 430 of the Code of Civil Procedure provides that when the complaint upon its face discloses that there is a…