WELLS v. McPIKE et al., 21 Cal. 215

Norton, J. delivered the opinion of the Court Field, C. J. concurring. It was not error to deny the motion for nonsuit. The answer did not deny the sale of the cattle at an agreed price, which is the cause of action set forth in the complaint. A denial of the indebtedness, without a denial of the facts which show the existence of the indebtedness, is but a denial of a conclusion of law, and raises no issue. But the denial of the indebtedness was not sufficient under the authority of the case of Higgins v. Wortell (18 Cal. 330).

The two other objections which are discussed in the briefs do not appear in the record in such a form as to be available to the defendants. A motion was made for a new trial, but not on the ground that the verdict was against the evidence. The plaintiff asks for a new trial because there was no offer to retransfer in writing a certain account, but the statement for a new trial does not show what proofs or, indeed, that any proofs were made at the trial in reference to that account.

The facts in regard to this account are brought forward by a special answer, upon which issue is taken by a replication, but it does not appear that any proofs were made by either party on this issue. The statement cannot be used as a bill of exceptions in regard to this point, because it does not appear that there was any ruling made by the Court or any exception upon the subject. In regard to the evidence about the value of the cattle, the trial, as shown by the statement, was singularly conducted.

The plaintiff does not appear to have offered any proof of his cause of action, but rested upon the pleadings as he was justified in doing. But at a subsequent stage of the trial he offered proof as to the value of the cattle, although the proof was immaterial, the sale having been for an agreed price. It is probable the parties treated the complaint as averring a sale for so much as the cattle were worth, instead of an agreed price, although the verdict is for the exact sum agreed to be paid.

But, as we have said, under the pleadings the value was immaterial, unless it became so by reason of the proof given on the special issue, and this does not appear by the statement. If the account was taken in satisfaction, as alleged in the special answer, the value was Immaterial; and so if taken only as collateral security for the agreed price, the value was immaterial. If the denial of indebtedness could be considered as raising any issue, it does not deny the value. Judgment affirmed.