Billings

The answer sets up inconsistent defenses, and as a party is entitléd to the benefit of inconsistent defenses, the instruction of the Court was erroneous.

An admission in one part of a pleading does not prevail over a denial in another part. (Siter v. Jewett, 33 Cal. 92 ; Nudd v. Thompson, 34 Cal. 39 .)

8. 8. Soil and J. W. Armstrong, for Despondent.

The statute provides that all material allegations in the complaint not controverted by the answer, must for the purposes of the action he taken as true, and it is nonsense to say that the admitted facts are to be taken as true, and still that the jury must pass upon them. It is not for them to construe the pleadings, but it is for them to pass upon the issues submitted to them and nothing else. If the verdict was against the admission in the pleadings, it would be disregarded to that extent. (Code of Civil Procedure, sec. 462; Bradbury v. Cronise, 46 Cal. 287 .)

The answer of the defendant contained several denials and one averment of new matter relied upon as a defense. The denials were: First—That plaintiff was owner of the personal property mentioned in the complaint. Second—That the plaintiff had, at any time, the possession…