Luther T. Mayo, Inc. v. Puterman & Gold

Proceeding under the provisions of rule V, subdivision 3, and rule VIII, respondent moves to dismiss the appeal of defendants, or affirm judgment.

This motion has been presented promptly after the filing of appellants’ opening brief. The judgment is a judgment for damages resulting from an alleged breach of contract. The record on appeal is the clerk’s transcript, together with the typewritten transcript presented in lieu of a bill of exceptions, as permitted by section 963a et seq. of the Code of Civil Procedure. As there is not any specification in the brief of insufficiency of the evidence to sustain the findings of fact, we must assume that the findings contain the established facts. And as the findings are not set forth, or even mentioned, in the brief, we are not called upon to give them further attention. The transcript, prepared in accordance with section 953e of the Code of Civil Procedure, need not be printed, but the parties “must, however, print in their briefs, or in a supplement appended thereto, such portions of the record as they desire to call to the attention of the court”. While the contention of appellants, that the conditions of the contract precedent to the…