Johnson v. Powers

The Court. 1. Appellant claims that the court below had no power to set aside the verdict of the jury, and to find the facts.

The substituted cross-complaint contains a statement of facts constituting a cause of action in equity. It was a complaint to foreclose a mortgage of personal property given to secure the payment of a promissory note therein set forth. The court was justified in treating the findings of the jury as advisory only.

2. By the verification of the original complaint the plaintiff made its statements his own. As an amended complaint had been substituted for the original, the latter had ceased to perform any office as a pleading, and its averments could not be used to disprove those of the amended complaint. If the adverse party were at liberty to use the first pleading as an admission to overthrow the amended pleading, the party who amends would reap no benefit from his amendment. (Meacham v. McKay, 37 Cal. 165.) So in Ponee v. McElvey, it was said: “The court below erred in permitting the original complaint to be read in evidence against the plaintiff.” But in the case now before us, the plaintiff was called as a witness on his own behalf, and on cross-examination his attention was called to portions of the original complaint claimed to be inconsistent with his statements as a witness. There is no suggestion that he was not given full opportunity to explain the inconsistencies. The portions of the original complaint were not offered as evidence of any fact other than the fact that the plaintiff made the statements contained in them, and such statements, so far as they were contradictory of or inconsistent with his statements as a witness, were as much admissible, for the purpose of impeaching him, as if they were contained in a letter written by him to a third person, or in an affidavit filed in a distinct proceeding. (Code Civ. Proc. § 2052.)

3. The plaintiff’s witnesses were allowed to testify fully as to the representations and alleged warranty made by defendant at the time of the sale. During the examination of a witness on behalf of the defendant, with reference to the alleged representations claimed by plaintiffs to be false and to constitute a war[181]ranty, the court remarked: “I don’t think there is any warranty in this case. The defense here, if any, to the note, is on the ground of fraud; I hold that in this case the plaintiffs cannot prove a warranty made at the time of the sale by parol agreement made between the parties at that time, because of the fact that there was a bill of sale made in writing between them which is silent as to any provision of warranty.” The appellant insists that this was error.