Gilman v. Bootz , 1883 Cal. LEXIS 377 ( 1883 )

Per Curiam.

The court below must have denied the motion for a nonsuit on the ground that the answer failed to deny the allegations of the complaint, except as to the assignment to the plaintiff. In so construing the answer the court misconceived its meaning. The answer denied that the sale was for eight hundred dollars in gold coin, as alleged in the complaint, and then proceeded to aver that the contract of sale was for four hundred dollars in money, and four hundred dollars to be paid in boarding the plaintiff. This was in legal effect to deny that the sale was for eight hundred dollars, or on any other terms than as set forth in the subsequent averments of the answer above stated. When, then, the plaintiff only offered the assignment to him and rested, he had offered no evidence to establish the main allegation of his complaint, and the nonsuit should have been granted.

Nothing which subsequently occurred on the trial removed the injury done by this error, and the judgment and order must be reversed, and the cause remanded. So ordered.