Hawkins v. Borland

delivered the opinion of the Court—Cope, J. concurring.

The pleadings in this case are a general count for money due by defendant to plaintiff for twenty head of beef cattle sold and delivered, and issue joined by a denial of all the averments of the complaint. The property, it appears, was sold by one Jesse Hawkins, and the question became material and was mooted on the trial, whether these cattle were the property of Jesse or of the plaintiff. To avoid a continuance, the plaintiff admitted that absent witnesses would testify to certain facts disclosed in the affidavit made to procure the continuance; and, on the trial, the defendant asked of a witness, what were the terms of the contract made by defendant with Jesse Hawkins—it being ad*415mitted that the contract was made with him—whether as for his own property or as agent, was a disputed point. The defendant in this connection offered to show that the contract was that he was to pay eight hundred and ninety dollars for the cattle, to be paid after they were fattened and slaughtered. We do not see in the record any proof going to show what period of time would reasonably be required for this process. This proof was objected to on the ground that the answer did not set up this contract. Ror was it necessary, for the plaintiff was bound to make out his contract substantially as he stated it. The defendant denied tho contract as the plaintiff stated it. It was not new matter to prove his denial in this way. It was only proving the issue on his part. We do not understand the case of Piercy v. Sabin, (10 Cal. 30,) as asserting the doctrine contended for by the Respondent. We gave the true rule in the case of Bridges v. Paige, (13 Cal. 640,) and refer to that case as decisive of this. The rejection of a portion of the testimony as given in the affidavit for continuance, embodies the same error as that just noticed.

2. We are inclined to think that the Court erred in admitting evidence of reputed ownership of this property in plaintiff; for though such evidence might, in some aspect of the cause, be legitimate, we do not see that in relation to the facts of this case it was proper.

The errors already noticed are sufficient to reverse the judgment.

Judgment reversed, and cause remanded for a new trial.

See Terry v. Sickles, 13 Cal. 427, and Angulo v. Sunol, ante.