( Flores v. Woodspecialties, Inc., 138 Cal.App.2d 763, 771 [ 292 P.2d 626].) Cf., however, Seaboard Finance Co. v. Miles Sons, Inc., 102 Cal.App.2d 526, 528 [ 227 P.2d 892].) However, it is clear that the instant case was not tried upon this theory.