Smith v. Compton , 6 Cal. 24 ( 1856 )

Mr. Justice Terry delivered the opinion of the Court.

Mr. Justice Heydenfeldt concurred.

The promise on the part of plaintiff to stay proceedings under his judgment against Richardson, was a condition precedent to the guaranty sued on, and performance on his part should have been alleged and proven, to entitle him to recover against defendants.

This was not done in the opening, and defendant was entitled to a judgment of non-suit.

The defendant, however, after his motion was denied, introduced evidence which enabled plaintiff to supply the defect in his case, and by so doing, waived the objection. See Ringold v. Haven, 1 Cal. Rep., 108.

From the whole record, the right of plaintiff to recover clearly appears 3 and we will not disturb a judgment, when it is evident that a new trial must be attended with the same result.

The judgment is affirmed with costs.