Poly, Heilbron & Co. v. Williams

This action was brought by plaintiffs to recover on a certain promissory note executed to them by .the defendant.

Defendant, in his answer, set up a counterclaim, alleging “that the plaintiffs are indebted to the defendant in the sum of twelve hundred dollars upon an account for nursery stock, consisting of fruit trees and grapevines eaten up and destroyed by the hogs, cattle, and horses of the plaintiffs, during the year of 1892, prior to the commencement of this action, at the county of Fresno, and state of California, which the plaintiffs then and there promised and agreed to pay the defendant.”-

“ That no part thereof has been paid, and that the said sum of twelve hundred dollars is now due and owing to the defendant from the plaintiffs.”

Plaintiffs demurred to that part of the answer pleading a counterclaim and at the same time moved the court to strike it out.

The demurrer was sustained, and the motion granted, and, upon defendant declining to amend, the case was tried by the court without a jury, and judgment given for plaintiffs.

This appeal is taken by the defendant from the judgment and the order denying his motion for a new trial.

The only question necessary to be…