delivered the opinion of the Court—Terry, C. J., and Field, J., concurring.
*407This action of ejectment was brought to recover a'certaip>ditch. One Laforge was a defendant, but no judgment was recovered against him. The complaint charges that the defendant—the Table Mountain Water Company—was in possession. The answer of the company does not deny this averment in any such manner as to put it in issue. The answer denies that this defendant has “ unlawfully, wrongfully, and in violation of plaintiffs’ rights, had the possession,” etc. But this might be perfectly true, and yet the defendant be in the possession. What the complaint called the defendant to answer, was not only the character of the possession, but the fact of possession by it, and a failure to deny this averment is an admission of it. This admission is conclusive evidence of the fact admitted. It is, therefore, immaterial, so far as the company are concerned, whether the Court erred or not in its admission or rejection of evidence in respect to an admitted fact— though we are not satisfied, as will be seen hereafter, that any substantial error was committed, to the injury of the defendants. Laforge was discharged from the suit. The Court found he was not in possession, hence he could not be sued in this action, and was properly discharged ; if he was in possession, the Table Mountain Water Company, having confessed their possession, and not having set up Laforge’s title, or shown any connection with it, judgment was properly rendered against it. But it is argued that error has been committed to the prejudice of Laforge; that though the judgment was for him, yet the predicate of that judgment was the finding that he was not in possession, and had surrendered all his right to the Table Mountain Water Company, or the members of it, and the control of the property; and that this finding was improperly made in this—that paroi evidence was admitted of a certain paper purporting to be an agreement of cancellation of a lease from the company to Laforge. Notice was served on the defendants’ attorneys, on the day of the trial, to produce this paper. It was shown that this paper was that day in the possession of one of the attorneys of defendant. The sufficiency of notice to produce a paper shown to be in the possession of a party is a question of discretion ; and if it were impossible to procure it between the time of giving notice and the trial, that fact should be made to appear. In this instance, it does appear that the paper was present, or in the hands or *408within the control of the defendant. There is nothing in the technical point that the agreement was between the members of the company and Laforge, and not between Laforge and the company. Literal accuracy cannot be expected in the description of a paper in the possession of the adverse party; such description as will apprise a man of ordinary intelligence of the document desired is enough. Nor is there anything in the point that the witness Brady testified that no consideration was expressed in this instrument. We understand him only to say that Laforge was to be paid for some improvements, and this was not expressed in the writing. The fact that'the agreement was executed and carried into effect, and the further fact that the defendants refused to produce the paper, go far to show that it was a valid agreement; but whether it was or was not, if Laforge surrendered the possession to the company, it was enough to support the finding that the company was, and Laforge was not, in possession. The company did not set up this agreement—indeed, could not—and Laforge by it parted with any possession he had before.
The judgment is affirmed.
On re-hearing in this case, the following opinion was rendered by Baldwin, J.—Terry, C. J., and Field, J., concurring:
On petition for a re-hearing.
The finding which is objected to is "that Laforge was not in possession. To prove that he was not, paroi evidence of the contents of a paper purporting to be an agreement of a cancellation of a lease was offered and admitted. It was objected that no consideration was shown for this agreement. But as a verdict, could not be found against Laforge, unless he was in possession, we do not see that this proof was inadmissible, for the agreement was evidence of a surrender of a former possession, whether there was a consideration for it or not. The finding was, therefore, right. At least, Laforge cannot complain. Judgment is for him. The reason given for the conclusion is not res judicata as to him, so as to bind him in any future proceeding. Though the Court decided he had no title and no possession, and therefore he was improperly joined as a defendant, yet it also decided that the plaintiff had no claim on him, and could recover nothing. We do not *409understand that the reasons given for a finding are judgments. The point decided is the thing fixed by the judgment, but the reasons are not. The only point adjudged is the fact that Laforge is not in possession, and that result was reached by testimony proper for that purpose. His right to the possession, if he has any, is not concluded by this judgment and finding. But there was evidence enough for the Court below to base its action on—that he was not, in fact, in possession ; and this is the only fact really decided. See Garner v. Marshall, 9 Cal. 270.
Laforge’s right is just as good, therefore, now, as it was before the trial; the effect of the judgment being to determine the fact that he was not in actual possession; and, according to the case just cited, actual possession was necessary in order to sustain an action of ejectment against him.
We think, therefore, that conceding everything to the argument of the counsel—which seems to us to be more plausible than sound—there is no substantial error in the opinion which the petition reviews.
The petition is denied.