18 Cal. 32 | Cal. | 1861
Cope, J. concurring.
It seems to us that the matters involved in this controversy have heretofore been determined. It is scarcely necessary to repeat here all the facts which appear in the cases of Butler v. Collins (12 Cal.) and Collins v. Butler (14 Id.)
It suffices to state that this suit is founded upon the notes tendered by Butler to Collins upon the occasion of the demand made by Butler of Collins, for the repossession of the store and goods
The authorities cited by the counsel for respondent have no application to such a case. Conceding the effect of a tender to be as
It is not necessary to notice minor points. We think this defense sufficiently presented in the answer and established by the record evidence.
We have assumed the finding of fraud as true. If it be not, the fault is in the verdict in the first case.
Order granting a new trial reversed and cause remanded.