This is an action by a father to recover damages for the death of his son, alleged to have been caused by the negligence of the defendant. The defendant inter alia pleaded in bar *630a release by plaintiff of all demand for the damages sued for, and in his answer inserts a copy of the release. This was not denied by plaintiff in the mode required by Section 448 of the Code of Civil Procedure. The plaintiff offered evidence tending to show that at the time he signed the release, he was incompetent to contract. To this evidence there was no objection by defendant, and the case was tried as if the fact of execution had been denied, issue on such point properly raised, and a verdict was found for plaintiff.

It is now said that this was error because there was no issue as to the execution of the release in the case; that by failing to make the affidavit required by the section of the Code of Civil Procedure above cited, its execution was admitted.

But, as stated above, when the evidence to show that the instrument of release was not executed was offered, no objection was made to it, and the trial proceeded throughout as if there was such an issue on which the jury was to pass. Under such circumstances the defendant can not be allowed to raise the point in this Court, that the verdict of the jury is against an admission made by the pleadings. This view is sustained by Tynan v. Walker, 35 Cal. 645, and Cave v. Crafts, 53 id. 141. We can not hold this contention of defendant tenable.

The evidence was sufficient to sustain the verdict. There was some conflict in the evidence, but on every essential point there was evidence before the jury sufficient to justify the conclusion to which they came. The cause should not then be sent back for a new trial on the ground that the evidence was insufficient to justify the verdict.

We have examined the instructions of the Court attacked by the defendant, and find no error in the action of the Court in regard to them.

The judgment and order of the Court are without error and are affirmed.

Myrick and Sharpstein, JJ., concurred.