Goldstone

The action is to recover the possession of certain eighteen boxes of dressed turkeys (three thousand eight hundred pounds), or the value thereof if delivery cannot be had. The answer alleges that the turkeys were deposited with defendant by one Hoerr, in his own name, for safekeeping, and were the property of said Hoerr and one Clements, partners as Clements & Hoerr. Plaintiff was nonsuited at the close of his evidence, and judgment for defendant was entered accordingly. The appeal is from that judgment upon a bill of exceptions containing the evidence.

Appellant claims that the judgment was erroneous for two reasons: 1. The evidence shows title and right of possession in plaintiff; 2. Defendant is estopped from denying plaintiff’s title.

1. A nonsuit should be denied where the evidence and the presumptions reasonably arising therefrom are legally sufficient to prove the material allegations of the complaint. (De Ro v. Cordes, 4 Cal. 118 ; McKee v. Greene, 31 Cal. 418 ; Alvarado v. De Celis, 54 Cal. 588 ; Felton v. Millard, 81 Cal. 540 ; Higgins v. Ragsdale, 83 Cal. 219 .) The proof must be sufficient to raise more than a mere surmise or conjecture that the fact is as alleged,…