Opinion
No. 21032. Department Two.
January 31, 1928.
APPEAL (389) — REVIEW — AMENDMENTS REGARDED AS MADE. In the absence of a statement of facts or bill of exceptions, a complaint for a balance due upon the price of an automobile will on appeal be presumed to have been amended to conform to proof, and therefore to support a judgment awarding the car to the plaintiff.
Appeal from a judgment of the superior court for Grays Harbor county, Abel, J., entered August 26, 1927, upon findings in favor of the plaintiff, in an action on contract, tried to the court. Affirmed.
E.S. Avey, for appellant.
A.P. Wilson, for respondent.
In the complaint in this case three causes of action are stated, one for $68.32 for gasoline, oil and automobile supplies sold by the plaintiff to the defendant, one for $126.40, the alleged balance of the purchase price on a Chevrolet automobile, and one upon a promissory note for $119.80. The answer denied liability upon all of the causes of action. By reply the affirmative matter in the answer was denied. The cause was tried to the court without a jury and resulted in findings of fact and a judgment awarding to the plaintiff the Chevrolet automobile mentioned in the complaint and denied a recovery upon the other items. From this judgment the defendant appeals.
[1] No statement of facts or bill of exceptions has been brought to this court and, therefore, the only question is whether the findings support the judgment. The appellant invokes the general rule that a judgment upon issues not made by the pleadings is erroneous, and may be set aside or reversed in a proper proceeding for that purpose. This rule, however, is not applicable in the present case, because, there being no statement of facts or bill of exceptions, it will be presumed that the evidence introduced upon the trial supported the findings, and the pleadings will be deemed amended to conform thereto. Pierce v. Pierce, 52 Wn. 679, 101 P. 358; Holden v. Romano, 61 Wn. 458, 112 P. 489; McCreery v. Carter, 73 Wn. 394, 131 P. 1125.
The judgment will be affirmed.
MACKINTOSH, C.J., ASKREN, HOLCOMB, and FULLERTON, JJ., concur.