Sloan v. Diggins

49 Cal. 38 | Cal. | 1874

By the Court, Rhodes, J.:

The defendant justifies the alleged trespass under a contract alleged to have been made between the Superintendent of Streets and certain persons who are therein described as the owners of the major part of the frontage of lots and lands liable to be assessed for the payment of the expenses of the work—the grading of a portion of Jones street—and a copy of the contract, together with the assignments thereof to the defendant was annexed to the answer. The defendant offered in evidence the contract with the assignments, but on the objection of the plaintiff it was excluded. The fifty-fourth section of the Practice Act provided that “ When the defense to an action is founded on a written instrument, and a copy thereof is contained in the answer, or annexed thereto, the genuineness and due execution of such instrument shall be deemed admitted, unless the plaintiff file with the Clerk, five days before the commencement of the term at which the action is to be tried, an affidavit denying -the same.” No affidavit was filed by the plaintiff, and consequently the genuineness and due execution of the contract was deemed admitted by the plaintiff. An instrument is genuine which is in fact what it purports to be; and it is only executed when the parties thereto have signed, sealed, and delivered it in the mode prescribed by law. The contract in this case is deemed to be a contract made by and between the Superintendent of Streets and the owners of the major part of the frontage of the lots, etc., and to have been duly executed by the parties thereto. The Court erred in excluding the contract.

Judgment and order reversed, and cause remanded for a new trial, the costs to abide the event of the suit.'

Neither Mr. Chief Justice Wallace nor Mr. Justice Mc-Kinstry expressed an opinion.