Kerckhoff

This is an appeal by plaintiff from a judgment in favor of defendants in an action brought to recover the sum of fifty thousand dollars on a bond given to insure the performance of the terms and conditions of a certain franchise for the construction of a railroad in the city of San Diego. The plaintiff alleged the granting of the franchise by ordinance of the common council approved April 11, 1907, the acceptance by the grantees, the deposit of a check in the sum of twenty-five thousand dollars to insure the faithful performance of the terms and conditions of the contract, the return of the check by the common council upon the filing of the bond in suit, and the breach of the conditions of the bond. The amended answer, among other defenses, alleged that the bond was without consideration because the franchise which was granted by the common council was illegal and void, and put in issue the entire question of the validity of the franchise. „ The trial court failed to find upon the question of want of consideration, but did find that the franchise was granted substantially in the manner alleged in the complaint. The conclusion of law is merely that the defendants are entitled to…