Ross

The action is one to foreclose a chattel mortgage. Judgment went for the plaintiff, from which the defendant appeals upon the judgment-roll. The complaint is in the usual form. The answer admits the execution of the note and mortgage, font avers that at the time of its execution it was agreed and understood that the plaintiff would not seek to foreclose so long as defendant paid the interest; that defendant had tendered the interest to plaintiff, who had refused to receive it. By way of cross-complaint the defendant set up the same matter of the parol agreement made at the time of giving the note and mortgage, as stated in the answer, and asks that said note and mortgage he reformed according to said parol agreement. The demurrer to the cross-complaint was sustained, and this is urged as one of the errors on appeal.

The new matter contained in the answer in reference to the parol agreement between the parties at the time of the 'execution of the note and mortgage is deemed in law controverted by the opposite party. (Code Civ. Proc., sec. 462.) An issue was therefore presented substantially the same as would have been presented by an answer to the cross-complaint, had the same…