Evans

(after stating the facts as above). [1] The assignments of error on which the plaintiff in error relies all present in varying forms the question whether the referee and the court below erred in holding the affirmative defense of the plaintiff in error not cognizable in the action at law. The decision of that question depends upon the nature of the allegations contained in that defense. The following is the substance of them:

In 1902, the Standard Portland Cement Company, controlled by Dingee and Bachman, was engaged in manufacturing cement at Napa Junction, Cal. In 1903 the Western Fuel Company, of which John L. Howard was the president, became the selling agent of the output of the Standard Company. Thereafter Dingee and Bachman organized the Santa Cruz Portland Cement Company, and that company also made the Western Fuel Company its sales agent, to sell on commission. In 1906 the Western Fuel Company turned its agency over to the Western Building Material' Company, a subsidiary corpo *3 ration which it had organized, and the stock of which it owned. Thereafter Howard suggested to Dingee and Bachman that they engage in manufacturing cement on Puget Sound. In 1906 Dingee and…