Bernard v. Heynemann — 2 Cal. Unrep. 166

Majority

p. 166

BERNARD, Respondent, v. HEYNEMANN, Appellant.

No. 7925;

March 28,1883.

Headnote

Trial—Conflicting Evidence—Jury to Judge Credibility.—On a question solely of fact in a case where the testimony is conflicting the jury is to be allowed to choose whom it will believe.

Sole Traders—Declaration—Publication of.—The act of April 12, 1872, did not make it essential to publish the declaration to carry on businees as a sole trader.

APPEAL from Superior Court, San Francisco.

Sharp & Sharp for appellant; W. H. Fifield for respondent.

The questions upon which this case turned were questions of fact. The testimony given by the plaintiff conflicted with that given by the defendant, and the jury saw fit to accept and base their verdict upon that of the plaintiff.

Under the act of April 12, 1852, publication of the declaration to carry on business as sole trader was not essential: Reading v. Mullen, 31 Cal. 104 .

Plaintiff was not estopped by the action against Heynemann & Co. from maintaining this action; it did not constitute a bar.

Judgment and order affirmed.

Cases cited

Reading v. Mullen 31 Cal. 104 Cal. p. 166