
    [S. F. No. 337.
    Department Two.
    November 7, 1896.]
    L. SCATENA et al., Respondents, v. THE CALIFORNIA CANNERY COMPANY, Appellant.
    Counterclaim—Demurrer Sustained on Motion op Defendant—Exclusion of Evidence—Review upon Appeal.—Where a demurrer to a counterclaim is sustained on motion for the defendant, the defendant cannot complain of such ruling upon appeal, and, after the sustaining of such demurrer, there being no issue upon the counterclaim, it is not error to reject evidence proffered in support thereof.
    Appeal from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial. A. A. Sanderson, Judge.
    The facts are stated in the opinion.
    
      Reinstein & Eisner, for Appellant.
    
      Estee & Miller, and John H. Miller, for Respondent.
   Searls, C.

Action to recover a balance of eight hundred and sixty-six dollars and forty-seven cents on account of goods, wares, and merchandise sold and delivered to defendant (a corporation) by the plaintiffs as copartners, under the firm name and style of L. Scatena & Co.

Defendant answered denying many of the allegations of the complaint.

It also set up a counterclaim, under which it demanded damages against the plaintiffs, as copartners aforesaid, in the sum of fifteen hundred dollars, on account of a breach of a contract entered into by and between plaintiffs and defendant for the delivery of one hundred and fifty tons of fruit at twenty dollars per ton.

Plaintiffs demurred to the cause of action contained in the counterclaim, which demurrer was undisposed of until the cause was on trial, when, as appears by the record, the demurrer was on motion of counsel for defendant sustained.

Thereafter counsel for the defendant offered testimony in support of its counterclaim, which was rejected by the court.

Plaintiff had judgment, from -which and from an order denying its motion for a new trial defendant appeals.

The order of the court sustaining the demurrer to defendant’s counterclaim, and the ruling of the court in excluding evidence in support thereof, are the only errors of any importance assigned.

The action of counsel for defendant in moving the court to sustain a demurrer to its answer of counterclaim is so extraordinary that we should doubt the correctness of the record, but for the fact which also appears, viz., that defendant had brought suit against plaintiffs for a breach of the same contract set out in the counterclaim, which action was set down for trial on the same day with this cause, and was doubtless heard and determined.

Be that as it may, the demurrer having been sustained by request of appellant, it cannot now complain on account thereof.

2. The demurrer having been sustained to the counterclaim, there was no issue to which the proffered evidence in support thereof could apply, and hence no error in its rejection. The evidence was ample to support the findings.

The judgment and order appealed from should be affirmed.

Belcher, C., and Haynes, C., concurred.

For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.

McFarland, J., Temple, J., Henshaw, J.

Hearing in Bank denied.  