Chamon v. City of San Francisco

SANDERSON, J. This action was brought under the statute of the 27th of March, 1868, providing for the compensation of persons whose property may be destroyed by riots and mobs: Stats. 1868, p. 418. The plaintiff laid his damages at twenty-five thousand dollars. The defendant answered as follows:

“And now comes the defendant and, for answer to plaintiff’s complaint, says:

“That defendant is informed, and verily believes the same to be true, that said plaintiff has not, by reason of anything mentioned in said plaintiff’s complaint, suffered or sustained damage in the amount of twenty-five thousand dollars, and said defendant therefore, upon such information and belief, denies the same.

“And defendant avers, upon such information and belief, that said plaintiff, by reason of that which is mentioned in said plaintiff’s complaint, has not sustained or suffered any damage or damages whatsoever to exceed the sum of two thousand and five hundred dollars, which sum of two thousand and five hundred dollars, and none other, said defendant admits said plaintiff has sustained and suffered by reason of that which is mentioned in plaintiff’s complaint, and hereby offers to pay the same.”

The pleadings were not verified. At the trial, a jury having been selected and agreed upon, the plaintiff put a witness upon the stand, and asked him what would be the legal interest upon the sum of twenty-four thousand nine hundred and ninety-nine dollars from the date at which the plaintiff had sustained the damages in question, up to the time of the trial. [511]To this question the defendant objected, and the court sustained the objection.

The plaintiff then rested, and thereupon the defendant did likewise.

The plaintiff then asked the court to instruct the jury as follows:

“Under the pleadings in this cause the plaintiff is entitled to a judgment against the defendant for the sum of twenty-four thousand nine hundred and ninety-nine dollars damages, with interest thereon, from April 15, 1865, at seven per cent per annum, and you are hereby instructed to find a verdict in his favor for that amount.”

The court refused to give the instruction.

The plaintiff next asked the court to instruct as follows: