Stringer v. Davis , 35 Cal. 25 ( 1868 )

By the Court, Sprague, J. :

The evidence introduced and admitted in behalf of plaintiff was sufficient to entitle him to a submission of his case to the jury, under the instructions of the Court defining the legal significance of the term “Hotel,” as used in the chattel mortgage statute. The Court, therefore, erred in granting defendant’s motion for a nonsuit.

The Court also erred in excluding the advertisements of plaintiff’s mortgagors, offered by him. These advertisements were competent evidence, as tending to establish the public character of the house in which the mortgaged goods were used.

The defendant’s answer is not, as urged by respondent, in the nature of a cross bill. The substantive matters of defense therein contained are but matters of confession and avoidance, and every material allegation therein contained, under the sixty-fifth section of the Practice Act, is deemed controverted by his adversary.

And furthermore, independent of the questions as to the character of the house in which the furniture was used, and the actual possession of the furniture by plaintiff at the time of the taking by defendant, which taking is not denied by his answer, the evidence received in behalf of plaintiff was sufficient to entitle him to judgment, in the absence of any evidence tending to justify the'taking.

Judgment and order reversed, and cause remanded.

Mr. Justice Rhodes expressed no opinion.