Curtis

T his is an appeal from a judgment on the verdict of the jury in favor of respondent E. A. Curtis Company and from the order denying a new trial.

The action was commenced on July 25, 1923, hy the filing of a complaint by E. A. Curtis, an individual, against defendant, wherein three alleged causes of action were set forth based upon written instruments or drafts executed by defendant payable to the order of E: A. Curtis at Bank of Italy, San Francisco, and payment of which instruments or drafts was stopped. On August' 29, 1923, defendant filed an answer admitting all the allegations of the 'complaint, but setting up a separate defense based upon the claim that the drafts were given for certain merchandise from E. A. Curtis, which it was alleged was not of the kind and character described in the agreement. The agreement, however, was in fact entered into between appellant and E. A. Curtis Company, a corporation, and not with E. A. Curtis in his individual capacity.

The case was regularly set, and on the day it was called for trial counsel for defendant asked permission of the court to file an amended answer, stating the action was being prosecuted by E. A. Curtis, as an…