41 Cal. 123 | Cal. | 1871
I see no valid objection to the question asked of Bandeen, as to what passed between him and Spaulding, in respect to the sale and conveyance of the land, about which the witness was testifying. The complaint charged that Hicks bargained for the land, paid the purchase money, and caused it to be conveyed to his wife by a deed of gift. It was shown that the land was conveyed by a deed of gift to Mrs. Hicks; that the purchase was negotiated by Spaulding, at his office, and that Hicks was present a portion of the time pending the negotiation. The answer to the question asked of the witness would show what took place at the time’ of the sale and conveyance; and the general rule is that such matters are admissible as a part of the res gesta. Their admissibility does not depend on the question whether they were brought home to Hicks. If he did not know, or, knowing, did not assent to, what was said or done at that transaction, the evidence would not affect him, unless Spaulding was, in fact, his agent.
Second—The plaintiff’s second point is not well taken. The matter to which the inquiry related was not averred in the complaint.
Third—The Court should have excluded the testimony of Hicks, to the effect that his indebtedness, in consideration
Fourth—The first instruction requested by the plaintiff was properly refused, for it, in effect, submitted to the jury the question as to what facts were admitted by the pleadings. That question is for the Court.
Fifth—The plaintiff’s third instruction should have been given, for the fact therein stated was expressly alleged in the complaint, and was not specifically denied in the answer of Hicks or Swain. The jury should be instructed, in such case, that the fact mentioned in the instruction was admitted by the pleadings. The oral instruction given by the Court, when refusing to give that instruction, is erroneous in one particular. The jury were instructed that they might consider the testimony in respect to the sheep, in connection with the pleadings, and that if they believed the pleadings were erroneous in that regard—that Hicks did actually surrender all his property to his assignee in insolvency—they might “give him the benefit of it.” The jury have no right to find a fact in favor of a party, which is contrary to, or inconsistent with, his pleadings. If a pleading does not correctly state the facts, application should be made to amend.
Sixth—The plaintiff’s eighth instruction is only a repetition of facts stated in the complaint, and not denied in the answers. It should have been given, together with the statement, that those facts were admitted by the pleadings. These remarks are applicable to certain other of the instructions requested by the plaintiff" which need not be particularly noticed. It is sufficiently indicated by what has already been said that several of the denials in the answer of Hicks, are not specific, within the meaning of the code.
Seventh—The plaintiff renews here the motion, made after judgment in the Court below, for a judgment, declaring the discharge in insolvency of Hicks void. The motion was heard on the pleadings and verdict. Several of the material allegations of the complaint are not sufficiently denied in the answer of Hicks; but neither the plaintiff nor the Court below treated the facts which were stated in those allegations as admitted, and the plaintiff adduced evidence to prove them. Had the opposite course been taken, Hicks doubtless would have asked leave to amend his answer. The verdict, by finding for the plaintiff as to a certain number of the sheep, determines that Hicks did not surrender all his property to his assignee; but it does not necessarily establish that the property was fraudulently or purposely omitted from his schedule. Under these circumstances, the motion was properly denied: The plaintiff should not have delayed the making of the motion, until after the cause had •proceeded to such a stage, that Hicks could not amend his answer when its defects were pointed out.
Judgment as to D. 0. Mills, Edgar Mills, and Henry Miller affirmed, and the judgment in favor of. the defendants, Hicks and Lansing, reversed, and cause remanded for a new trial.
Mr. Justice Sprague expressed no opinion.
