Jones v. Spears

47 Cal. 20

Opinion

By the Count:

• 1. The verdict and judgment were in favor of the defendant, notwithstanding that the answer admitted that the defendant had in his possession some forty-seven head of the sheep of the plaintiff sued for in this action.

2. A demand made by the plaintiff upon the defendant for the delivery of the sheep sued for, is admitted in the answer, and it results that the first instruction asked by defendant and given by the Court, to the effect that the plaintiff could not recover in the action without proving that he had made such demand, was erroneous.

Judgment and order denying new trial reversed, and cause remanded. Remittitur forthwith.