St. 15; Levy v. McDowell, 45 Tex. 220; Wheeler v. Farmer, 38 Cal. 203.) Defendant's motion for a nonsuit should have been granted, there being no proof of her partnership. (Gilman v. Bootz, 63 Cal. 120; Clark v. Ritter, 59 Cal. 669; Code Civ. Proc., sec. 581, subd. 5; Masten v. Griffing, 33 Cal. 111; Johnson v. Moss. 45 Cal. 518.) Where there is a partnership agreement, that is the only evidence of the real status of the parties to each other. (1 Collier on Partnership, 7, note 9; Coulter v. Thomas, 25 Vt. 73; Robins v. Laswell, 27 Tl. 365; Stevens v. Faucett, 24 Ill, 483; Phillips v. Phillips, 49 Ill. 437; Neihoff v. Dudley, 40 Ill. 406; Lintner v. Milliken, 47 Ill. 178; Clark v. Reed, 11 Pick. 406; Hazzard v. Hazzard, 1 Story, 371; Salter v. Ham, 31 N. Y. 321.)

E. W. McGraw, for Respondent.

The charge of the court was entirely in accordance with the law. The following cases are authority for both. the verdict and the instructions complained of: Reed v. Kraemer, 111 Pa. St. 485; Allen v. Dunn, 15 Me. 292; Smith v. Moynahan, 44 Cal. 53.

SHARPSTEIN, J.-The plaintiff in his complaint alleges that "the Independent Stove and Pipe Works is a copartnership, doing business in the city and county of San Francisco, and that the defendants, Jacob Broeder, Francis Bornheimer, and Catherine Bornheimer, were members of and comprised said firm." And that, on April 15, 1885, said defendants became indebted to plaintiff in the sum of $307, on a balance of account of goods, wares, and merchandise theretofore sold and delivered by plaintiff to said copartnership at its special instance and request; that defendants have not paid said sum or any part thereof, but the whole remains due and owing by defendants to plaintiff.

Defendants Francis Bornheimer and Jacob Broeder answer jointly, denying that they and defendant Cath

erine Bornheimer were members of or composed said alleged copartnership, and denied that at any time said defendants were indebted to plaintiff in said sum of $307, or any other sum.

Defendant Catherine Bornheimer answered separately, denying that she was ever a member of said copartnership, or that the defendants or she was indebted to the plaintiff in any sum whatever. The action was tried by a jury, which returned a verdict against all the defendants in favor of the plaintiff, assessing his damages at the sum of $307, for which sum a judgment was entered in his favor against all the defendants. Defendant Catherine Bornheimer moved for a new trial, which was denied, and from that order and the judgment against her she appeals.

The grounds upon which appellant mainly relies for a reversal of the order denying her motion for a new trial are, that the evidence shows she was not a partner with her co-defendants, and that she never held herself out to the plaintiff as a partner of said co-defendants.

There is evidence that she did and evidence that she did not so hold herself out to the plaintiff as a partner with her co-defendants for the purpose of obtaining credit with the plaintiff for the goods sold to said partnership. The plaintiff testifies that she did; she testified that she did not. It was for the jury to determine whom they would believe, and the court below having denied a new trial, we cannot disturb the order on the ground of insufficiency of the evidence to justify the verdict.

The instructions of the court to the jury, and excepted to by appellant are not erroneous.

Judgment and order affirmed.

MCFARLAND, J., and THORNTON, J., concurred.

[No. 12668. Department Two.-May 2, 1890.]

E. E. KIRSCH, APPELLANT, v. C. F. E. KIRSCH, RE

DIVORCE-SUPPLEMENTAL

SPONDENT.

CROSS-COMPLAINT-ADULTERY

AFTER СомMENCEMENT OF ACTION-TRIAL-FAILURE TO OBJECT-APPEAL.In an action for divorce, upon the ground of extreme cruelty, where, by consent of plaintiff, a supplemental cross-complaint is filed by defendant, charging plaintiff with adultery committed after the commencement of the action, and issue is taken upon such cross-complaint by answer thereto, and a trial is had thereon without objection, and a divorce is granted thereupon to defendant, it is too late to object for the first time, upon appeal, that the supplemental cross-complaint sets up a new cause of action, accruing after the commencement of the action, or that it contained no prayer for relief, and must be regarded only as a defense, etc. Where a case is tried upon the theory that the issues are properly joined in the trial court, and no objection or exception is taken there, it is too late to raise such objection upon appeal.

APPEAL from a judgment of the Superior Court of the city and county of San Francisco.

The facts are stated in the opinion of the court.

Fisher Ames, and George D. Collins, for Appellant.

The so-called supplemental cross-complaint, being an amendment to the answer and cross-complaint, and filed as a further and supplemental answer and crosscomplaint, must be held to be an answer, and not a cross-complaint. (Civ. Code, sec. 122; Shain v. Belvin, 79 Cal. 263; Doyle v. Franklin, 40 Cal. 110.) It is not allowable to substitute a new and distinct cause of action by way of supplemental complaint. (Gleason v. Gleason, 54 Cal. 136; Wittenbrock v. Bellmer, 57 Cal. 13; Wood v. Brush, 72 Cal. 226; Code Civ. Proc., sec. 464.) There being no prayer for relief, the cross-complaint can only be treated as a recriminatory defense. (Hungarian Co. v. Moses, 58 Cal. 176.)

William C. Flint, and F. William Reade, for Respond

ent.

Where issue is joined and trial had, without ob

jection to the sufficiency of the pleadings, objection will not be permitted in the supreme court. (Cave v. Crafts, 53 Cal. 135; Spiers v. Duane, 54 Cal. 176; Hiatt v. Board of Trustees, 65 Cal. 481; Van Maren v. Johnson, 15 Cal. 313.) The defendant may, by way of supplemental pleading, show the adultery of plaintiff since the commencement of the action. (Steele v. Steele, 35 Conn. 48; Smith v. Smith, 4 Paige, 432; Sherl v. Sherl, 2 Brad. 223; 2 Bishop on Marriage and Divorce, sec. 391; Brisco v. Brisco, 2 Add. Ecc. 259.)

MCFARLAND, J.-Action for divorce; judgment for defendant, and plaintiff appeals from the judgment upon the judgment roll alone.

The ground of divorce set up in the complaint was extreme cruelty. Defendant filed an "answer and crosscomplaint," in which he denied the alleged acts of cruelty, and set up affirmatively extreme cruelty by plaintiff, and prayed for a divorce on the latter ground. Plaintiff answered the cross-complaint, denying its averments as to cruelty. The amended complaint was filed September 26, 1886. Afterward, on January 10, 1887, defendant, "by consent of plaintiff, and by leave of court," filed "amendment to answer and supplemental cross-complaint," in which he averred that "on divers days and times between the third day of September, 1886, and the first day of January, 1887, and particularly on the thirtieth day of November, 1886, the plaintiff herein committed adultery with" a certain person named, at a certain named place. The plaintiff made no objection whatever to this last-named pleading, but answered it, calling it in her answer "defendant's supplemental crosscomplaint," and denied the averments of adultery. Afterward plaintiff herself filed a supplemental complaint, averring additional acts of cruelty committed since the commencement of the action, viz., on January 13, 1887. Defendant answered, denying its averments. The parties

went to trial on the issues raised by these last-named pleadings, as well as upon other issues, and the court found against all the averments of cruelty, but found, also, "that on divers days and times between the third day of September, 1886, and the first day of January, 1887, and particularly on the thirtieth day of November, 1886, the plaintiff committed adultery with" the person and at the place stated in said so-called supplemental cross-complaint. No motion for a new trial was made; no evidence is brought here by bill of exceptions; and the record does not show any objection or exception whatever.

Appellant now asks a reversal of the judgment, on the sole ground that the so-called supplemental crosscomplaint of defendant was insufficient; that it must be regarded as only a defense; that it sets up a new cause of action, accruing after the commencement of the action; that there is no prayer for relief, etc. But the case comes clearly within the rule that where a case is tried upon the theory that the issues are properly joined in the trial court, and no objection or exception is taken there, it is too late to raise such objections here. (Hiatt v. Board of Trustees, 65 Cal. 481; Spiers v. Duane, 54 Cal. 176; Cave v. Crafts, 53 Cal. 141; Van Maren v. Johnson, 15 Cal. 313.)

The judgment is affirmed.

SHARPSTEIN, J., and THORNTON, J., concurred.

Hearing in Bank denied.