Hoskins

This appeal is from a judgment directing the issuance of a writ of mandate requiring the defendant to make a true and correct final estimate of excavations made by the plaintiff under a contract for the construction of a concrete highway for Stanislaus County.

[1] Appellant assigns as error that the court failed to file findings of fact and conclusions of law. The appeal is taken upon the judgment-roll alone and therefore, in support of the judgment, it is presumed that findings were waived. (Mulcahy v. Glazier, 51 Cal. 627; Baker v. Baker, 139 Cal. 626 [ 73 Pac. 469 ]; Ladd v. Myers, 4 Cal. App. 352 [87 Pac. 1110]; Hutton v. Newhouse, 41 Cal. App. 689 [ 183 Pac. 276 ].)

[2] It is contended that the complaint is insufficient in that it does not allege that prior to the commencement of the action a demand was made upon the defendant to make the required estimate. The complaint alleges that the defendant refused to include in his estimate the work upon which the action is based. The answer denies that the plaintiff was entitled to have such work so included and this appeal is founded on the same contention. Under such circumstances a demand would have been futile and this court…