
    [No. 9668.
    Department Two.
    April 25, 1887.]
    JOHN O. MOORE, Appellant, v. JAMES CAMPBELL, Respondent.
    Breach of Contract—Action to Recover for—Evidence.—In an action to recover damages for the breach of a contract of employment, letters written by the plaintiff between the time of the alleged breach and the commencement of the action, tending to show that he then claimed nothing as due him from the defendant, are relevant and material.
    Practice—Findings — Objection to must be Made in Lower Court — Appeal. —An objection that a certain finding is not within the issues raised by the pleadings, if not made in the court below, will not be considered on appeal.
    
      Id.-—Hew Triad—-Finding Outside of Issues —- Evidence.—A new trial will not be granted on the ground that certain findings are not within the issues raised by the pleadings, when the action was tried without objection to the sufficiency of the pleadings to raise such issues, and the findings are justified by the evidence.
    Appeal from an order of the Superior Court of the city and county of San Francisco refusing a new trial.
    The facts are stated in the opinion.
    
      George B. Merrill, for Appellant.
    
      Clunie & Young, and Clunie & Knight, for Respondent.
   Belcher, C. C.

This is an action to recover damages in the sum of three thousand dollars for breach of contract. It is alleged in the complaint that in the month of May, 1879, the plaintiff and defendant entered into an agreement by which plaintiff was to render services to defendant, as his agent and business manager, for the period of one year, from and after the ninth day of June, 1879, for the sum of three thousand dollars, and all his personal'living expenses to be paid and met by defendant; that on the ninth day of June, 1879, in pursuance of the agreement, plaintiff sailed with defendant for the city of Honolulu, and that, having arrived there, he held himself subject to the orders of defendant, under his said agreement, and demanded of defendant to designate what services he should render, hut defendant refused to designate any labor or services to be performed by plaintiff, and on the sixth day of July following informed him that he would not fulfill the contract, and directed him to take the first steamer for San Francisco, with which request he then and there complied; that defendant paid him on account for his services the sum of eight hundred dollars, and that his personal living expenses after the sixth day of July amounted to eight hundred dollars. The answer denies all the material allegations of the complaint, and denies that defendant “ is indebted to plaintiff in the sum of three thousand dollars, or in any other sum whatever, upon an agreement, or for anything.” It then alleges that defendant took plaintiff to Honolulu as an act of kindness, and there gave him some employment, and paid him in full for said work after his services were rendered; and that in no other way has plaintiff ever served defendant, and all work or services ever done for defendant by plaintiff have been paid for in full by defendant.”

The court found that the agreement was made and broken as set forth in the complaint, and also that defendant paid plaintiff eight hundred dollars and two passenger tickets from Honolulu to San Francisco, which said sum of money and tickets the plaintiff received in full satisfaction of all demands against defendant by reason of the breach of said contract by defendant as aforesaid.” Judgment was then entered in favor of defendant. The plaintiff moved for a new trial, and the appeal is from the order denying his motion.

Two letters written by the plaintiff were offered in evidence by the defendant, and were objected to as irrelevant and immaterial. The objections, we think, were properly overruled. The letters were written between the time of the alleged breach and the commencement of the action, and tended strongly to show that nothing was then claimed by plaintiff to be due him from defendant, and they were therefore relevant and material to the matter in hand.

It is further objected that the finding that plaintiff’s claim was fully paid and satisfied was not within the issue tendered by the defendant’s answer. The point does not appear to have been made in the court below, and we think it should not be sustained here.

The answer might have been, and perhaps should have been, amended at the trial, but as the case was tried upon it without objection as to its sufficiency, and the findings and decision were justified by the evidence, the order refusing a new trial should now, we think, be affirmed.

Foote, 0., concurred.

The Court.

For the reasons given in the foregoing opinion, order affirmed.

Hearing in Bank denied.  