The opinion
SHAW, J., concurring.
I concur in the judgment on the ground that- the case having been tried and submitted to the court below on the theory that the pleadings did not contain a conclusive admission that the contestee, "Treanor, received 4,862 legal votes, it is too late in this court to present a differ
*320
ent construction of the pleadings, and claim here, for the first time, that the contestant is bound by the admission.
(King
v.
Davis,
34 Cal. 106 ;
Lee
v.
Figg,
37 Cal. 336 ;
1
Hutchins
v.
Castle,
48 Cal. 156 ;
Hughes
v.
Wheeler,
76 Cal. 230 ;
Sukeforth
v.
Lord,
87 Cal. 403 ;
Willey
v.
Crocker etc. Bank,
141 Cal. 518 .) I do not agree with the construction put upon the pleadings in this respect in the principal opinion. I concur in all other points.
1
99 Am. Dec. 271 .