Ortega v. Cordero

Citations

• 88 Cal. 221
• 26 P. 80
• 1891 Cal. LEXIS 674

Syllabus

<p>Findings Outside the Issues — Admissions of Pleadings — Review upon Appeal. — Findings of fact outside the issues raised by the pleadings, and contrary to their admissions, will be disregarded on appeal from the judgment, where no bill of exceptions appears in the record; and it will not be presumed in such case that evidence was introduced on the trial for the purpose of establishing or rebutting the allegations of the complaint not denied by the answer, or that the case was tried as if the allegations had been denied.</p> <p>Id.—Trial of Issues not Raised—Equitable Estoppel.— The principle of equitable estoppel upon which it is held that objections cannot be urged upon appeal that the findings are outside the issues, where it appears from the record that the parties have actually tried issues not raised by the pleadings without objection, and by tacit consent, as if the issues had been made, can only apply where the record shows that the party against whom the estoppel is invoked consciously participated or acquiesced in the trial of the issue, as if it had been made, and in such manner as may have induced the other party to believe that it had been properly made, or diverted his attention from the fact that it was not made, and from supplying or curing the defect by an amendment of his pleading.</p> <p>Id. — Contract — Admission of Pleadings — Findings —• Variance. — Where the complaint in an action to recover the balance due on the purchase price of certain land alleges an agreement as to the terms of payment, and the answer does not deny or in any way qualify the agreement alleged, or set up any new agreement, a finding of an agreement of a different date and consideration from that alleged in the complaint will be disregarded on appeal, in the absence of a showing in the record that the parties tried the cause as if the agreement found was put in issue.</p>