Long

— The judgment in this case has been heretofore affirmed by this court. ( 79 Cal. 260 .) The present appeal is from an order denying a new trial. The action was brought upon the following agreement, *438 executed by the defendant to Janies H. Long, the assignor of the plaintiff: —

The defendant, in addition to a denial of the allegations in the complaint, alleged, “for a further and separate defense to said action,” that he had been induced to execute the instrument sued on by certain false and fraudulent representations made to him by such James H. Long, and that said contract was “inequitable, and wholly fraudulent and void.” At the trial of the action the defendant did not deny the execution of the instrument sued on, but offered evidence for the purpose of showing the negotiations between him and said Long prior to its execution regarding the subject-matter thereof, and that in those negotiations Long had agreed that he would point out other property from which the judgment could be made than that upon which the execution was subsequently levied. Long denied that any such agreement had been made by him, or even made the subject of conversation between him and the defendant,…