Siple

Appeal from a judgment rendered in favor of defendant. The judgment-roll is presented, together with a bill of exceptions, showing the proceedings had in the case.

Plaintiff sued in claim and delivery to recover possession of an automobile or its value. Defendant answered, denying the ownership of the plaintiff or his right to the possession of the machine, and affirmatively alleged that the defendant had purchased for a valuable consideration the auto-mobile from the plaintiff and had received a bill of sale, which was set out in haec verba in the answer. This bill of sale recited that the plaintiff had sold to defendant the automobile, and was signed: “R. A. Siple, by W. C. Bingham.” The plaintiff did not, as is required by section 448 of the Code of Civil Procedure, serve or file an affidavit denying the genuineness and due execution of the bill of sale. At the trial he offered to show that the bill of sale was executed by Bingham without plaintiff’s authority; whereupon the defendant objected to the testimony on the ground that the failure to deny the instrument constituted an admission of its genuineness and due execution. The court sustained the objection. Plaintiff was…