Millich v. Gutternich

4 P. 411 | Cal. | 1884

By the COURT.

This action was properly brought under section 1161 of the Code of Civil Procedure, but the judgment of the court below must be reversed for errors in the proceedings.

In the first place, the findings do not support the judgment. No such lease as that set forth in the complaint is found by the court; but, on the contrary, a contract for a lease is found essentially different from the terms of the lease which is declared on, and is the foundation of plaintiff’s action.

There was also error in the ruling of the court found in the fourth bill of exceptions. The plaintiff testified that he was not in the city of Santa Cruz on the twenty-third day of January, 1879. This was material evidence in the case, and it was competent for the defendant to contradict him on this point.

For these errors the judgment must be reversed and the cause remanded for a new trial. So ordered.