Opinion
Appeal from the District Court of the Fourth Judicial District, City and County of San Francisco.
The plaintiff declared for goods, wares, and merchandise sold and delivered to defendants, and for money had and received by defendants to plaintiff's use.
The testimony, which was admitted without objection, showed that the indebtedness arose out of goods delivered by the plaintiff to the defendant Cowper, to be sold on commission. The plaintiff recovered judgment. The defendant moved for a new trial, and in his statement assigned as a reason why a new trial should be granted, that the evidence showed that no goods were sold, but that they were delivered to be sold on commission. The judgment was rendered May 6th, 1872, and provided that it should draw interest at seven per cent per annum. The defendant Cowper appealed.
COUNSEL:
The only judgments which bear interest are those for money lent. (Stats. 1870, p. 699.)
J. M. Seawell, for Appellant.
Quint & Hardy, for Respondent.
The evidence was admitted without objection, and it is too late to raise the point that the proof did not correspond with the complaint.
OPINION By the Court:
1. The objection to the admissibility of certain evidence, now made here for the first time, cannot prevail. Had it been made and insisted upon at the trial, which it was not, an amendment of the complaint would, no doubt, have been directed.
2. Upon the issues determined by the judgment the evidence is of such a character that we will not disturb the judgment.
3. There is nothing in the point as to the rate of interest named in the judgment.
Judgment and order affirmed.