Young

This is an appeal from an order denying defendant’s motion to vacate a judgment which was rendered against him. The motion was duly made pursuant to the provisions of section 663 of the Code of Civil Procedure. The appeal is presented on a bill of exceptions. The evidence which was adduced at the trial is not before this court.

The plaintiffs, as the assignees of the California Breeders Service Company, brought suit upon a written contract to enforce payment of the agreed purchase price of seventeen Holstein cows and twenty-three heifers, alleged to have been sold and delivered to the defendant. The complaint avers that “plaintiffs rely wholly on (the) written contract”. The prayer demands judgment for $1807.50, together with interest, costs and stipulated counsel fees. Incident to the suit the cattle were taken and held by the sheriff under a writ of attachment.

The answer denies that the defendant entered into the contract with the California Breeders Service Company; denies the execution of the alleged contract; denies the consideration therefor, and denies all of the other material allegations of the complaint. As a separate defense the answer alleges that at the time of the…