The application for the discovery was professed to be made for the purpose of enabling the defendant to frame an answer. The affidavit of the principal defendant shows that the answer can be made without a discovery, for he avers that the agreement, or alleged agreement, asked to be dis- < overed, was never made by him. Whether or not there should be relief after issue joined is not before the court. Further, the court below was right in setting aside the order upon its finding,.from the affidavits, that the plaintiff had not the possession or control of the instrument in question. Code Civil Proc. § 806. The proof on this subject was of such a nature that the conclusion -of the court below, as to the fact, cannot be reversed. The order should be affirmed, with $10 costs, and disbursements to be taxed.