Wood v. Tomlinson (1879) · DecisionDepot

Wood v. Tomlinson

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Jul 1, 1879 No. No. 6388Published

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Holding. The court held that a jury instruction was erroneous because it improperly assumed as a fact that the plaintiff delivered all the hogs in question, despite the defendant's answer disputing the total number delivered.

Issues

Whether the trial court's third instruction to the jury was erroneous for assuming a disputed fact regarding the number of hogs delivered.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“The third instruction given at the request of the plaintiff assumes the fact that the plaintiff delivered all the hogs to the defendant, and in that respect it is erroneous”

Synopsis

Erroneous Instruction.—An instruction which assumes a material fact not admitted by the pleadings is erroneous.—[Reporter.]

By the Court : The third instruction given at the request of the plaintiff assumes the fact that the plaintiff delivered all the hogs to the defendant, and in that respect it is erroneous, so far as it relates to the number in excess of that which is admitted by the answer to have been delivered to the defendant.

[721]Judgment and order reversed, and cause remanded for a new trial. Remittitur forthwith.

Wood v. Tomlinson

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