
    ABEL STEARNS, Respondent, v. MONTGOMERY MARTIN and B. W. WILSON, Appellants.
    
      Assignment of Contract. — Where a party sots up in his pleadings an assignment to him of a contract made with another, he must allego a positive transfer, and the character of it.
    Amendment to Pleadings. — Amendments of pleadings are in the discretion of the Court below.
    Evidence — Contract as Evidence. — A joint contract cannot be given in evidence, where the pleadings set up a several contract alone.
    Appeal from the First Judicial District.
    This was an action on a promissory note of the defendants, in favor of plaintiffs, for $8,000, subject to a credit of $8,800. The defendants, in their answer, admitted the making of the note, but alleged it was given by Martin, as principal, and Wilson as surety, with the knowledge of the plaintiff; that it was given for the purchase, by the defendant Martin, from the plaintiff, October 10th, 1852, of five hundred head of horned cattle, “ Novellas,” of an excellent quality and size, and about three years old, which the plaintiff represented he had then on his ranch, near Los Angeles, and which he agreed to deliver to said Martin immediately, so that he could drive them north before the rainy season.
    The answer charged that the plaintiff only  delivered one hundred and fifty * cattle, for which defendant Martin had paid, and that they were of an inferior kind, and had refused to allow the defendant to pick out the balance, according to contract.
    The answer set up a counter claim on the part of the defendant Martin, in the damages sustained by the non-fulfilment, by the plaintiff, of the contract.
    Upon the trial the defendants introduced a witness, Ozias Morgan, who testified that he and the defendant Martin, were partners in the purchase of the cattle mentioned in the defendant’s answer, whereupon the plaintiff objected to any proof concerning cattle purchased jointly by Martin and Morgan, inasmuch as the counter claim of Martin was founded on a single and separate contract, as set out in the pleadings entered into between Martin and the plaintiff. The objection was sustained by the Court. The defendants, with the leave of the Court, then filed an amended answer and counter claim, in which they state, that the contract for the sale of cattle was made and entered into between the plaintiff and the defendant Martin and one O. Morgan, and that, subsequently to the contract, Martin had acquired all the interest of said Morgan in the contract, and the rights flowing therefrom.
    The plaintiff demurred to the amended answer, and assigned the following reasons: 1st. Because the amended answer did not state at what time, nor for what consideration, the assignment was made by Morgan to Martin, nor whether the assignment was verbal or written, nor what was the nature of the demand assigned, nor that the plaintiff had notice of it, 2d. Because the defendant Martin cannot set up a demand for unliquidated damages which he holds against the plaintiff as assignee, against the demand upon which this suit is brought, as there is no allegation that the defendant Wilson, has any interest in the contract so assigned.
    The Court sustained the demurrer. The defendant, with the leave of the Court, filed another amended .answer and paid the costs. But the Court ordered that the second amended answer should be disregarded. To which ruling the defendants excepted.
    The defendants then propounded the following question to * the witness Morgan: State the  particulars of any verbal contract entered into between the plaintiff Martin, and yourself. The plaintiff objected to the question, and it was overruled by the Court. The defendants excepted.
    The jury rendered a verdict for the plaintiff for $5,901 85. The defendants moved for a new trial, which was refused, and judgment being entered on the verdict, they appealed.
    
      
      J, Lancaster Brent & H. P. Hepburn, for Appellants.
    Cited Hall v. Bobinson, 2 N. Y. 293; 1 Code Eep. 311; Note to § 111, N Y. Code, 1852; Voorhies’ 2d ed. 982; 5 How. Pr. 470; § 67 Practice Act.
    
      Scott & Granger, for Eespondenfe
    Cited 4th, 12th, 13th, 14th, 17th, 39th, 47th and 68th sections of Practice Act of 1851; Bernard v. MuUot, 1 Cal. 368.
    
      
      Cited in Hook v. White, 36 Cal. 301.
    
   Mr.. J. Heydeneeldt

delivered the opinion of tho Court.

Mr. Ch. J. Murray concurred.

The averment of the amended answer of the defendants, as to Martin’s acquisition of Morgan’s interest, is too loose and uncertain. It should, at least, have alleged a positive transfer or assignment, and the character of it, so that the plaintiff would be put upon notice of what he had to meet. The demurrer was, therefore, properly sustained.

The Court exercised its discretion in disallowing the second amendment, and we do not think it a proper question for our revision.

All evidence in relation to tbe joint contract was properly excluded where the pleadings set up a,several contract alone.

Judgment affirmed.  