114 Cal. 516 | Cal. | 1896
The court below rendered an ordinary money judgment in favor of the plaintiff and against the defendant for the sum of six thousand five hundred dollars, together with costs; and the defendant appealed from the judgment and from an order made denying his motion for a new trial.
We think that the judgment must be reversed and a
It is averred in the complaint that the deceased,. Sarah F. Elmore, was the wife of the appellant; that during her lifetime and during the coverture she received certain property from the estates of her deceased parents, which was mostly in the form of money; that she furnished this money to the appellant as her agent and trustee to purchase lands and some personal property for her; that, in pursuance of such trust, he did purchase large tracts of land and improved the same with her said money, which said lands so purchased are specifically described in the complaint; that he took the conveyances of said lands in his own name; and that he to some extent mingled said moneys of the said wife with community property, so that it had become difficult to state exactly what her interest wras in the lands so purchased, but that, according to the plaintiff’s information and belief, at least one-half of the said described lands, and one-lialf of certain personal property, was bought by the appellant, and is held by him as trustee for the said deceased wife. The prayer of the complaint is for "judgment that appellant account for all the purchases he had made, as aforesaid; that all the property described in the complaint be decreed to be the separate property of the said deceased wife, and that the appellant be decreed to convey to plaintiff, as administratrix of the said deceased wife, all the real property described in the complaint, and also transfer to her all the personal property described. The court found that the said deceased wife, Sarah F. Elmore, inherited and received from the estates of her parents the sum of six thousand five hundred dollars. It further found, however, that she did not furnish said money, or any part thereof, to ' the appellant as her agent and trustee with which to purchase lands, and that defend
Respondent contends that appellant waived the point of a variance between the complaint and the evidence? because having made that point in a motion for a non-suit, he afterward introduced evidence in the case. This position, however, is not tenable. Appellant moved for a nonsuit upon the express ground that there was no evidence tending to prove that appellant held certain lands and property which he had purchased with the separate money of the deceased wife as her trustee; and the motion for a nonsuit should have been granted. The point thus made on the motion for nonsuit was not waived by the mere fact that the appellant afterward introduced some evidence in the case. No such rule obtains in this state. The rule upon the subject is simply this, that if, after a motion for a non-suit for want of testimony upon any material point has
The foregoing views make a new trial necessary. The
The judgment and order are reversed and the cause remanded for a new trial.
Temple, J., and Henshaw, J., concurred.