The trial court caused a judgment to be entered against the defendants for moneys due under a written contract. The appellants made a motion to vacate the judgment and enter a judgment in favor of defendants and the motion was denied. They made a motion for a new trial and the motion was denied. Thereafter they appealed under section 953a of the Code of Civil Procedure. The findings followed the pleadings and fully state the facts. They are as follows:

On this appeal the appellants present three points. (1) The court erred in holding appellants still liable for the payment of said sum of $7,500 for the reason that respondents had been fully paid by the parties; (2) there is no consideration for appellants’ alleged agreement to pay; (3) that said action was prematurely brought if any right did exist in plaintiffs and respondents to maintain said action, in that no proof was offered or received to establish the fact that at the time of bringing the said action defendants and appellants had received out of their royalty of 33%% a sum equal to 10 points thereof, which fact had been specially denied.

In support of their first point the appellants earnestly rely on two exhibits, “B” and “E,” being copies of accounts kept by the respondents, but those two exhibits are to be read in connection with exhibits “C” and “D,” which are copies of other accounts from respondents’ books, and when the four are read together they fully sustain the contention of the respondents that while the respondents had collected the said sum of $7,500 for the account of Hitchcock and Casteel said sum was held in a suspense account pending the disputes between the parties to this action. The respondent L. H. Mitehel testified he had not received the money. Respondents’ bookkeeper, A. S. Burdette, fully explained the matter as above stated. Messrs. Hitchcock and Casteel levied on and attached said money in the hands of respondents as the property of Hitchcock and Casteel. The trial court found the fact against the appellants, and there was certainly some substantial evidence to' support the finding.

The second point made by the appellants may' be answered by a most cursory reading of the contract. It is quite clear that there was a consideration for the promise made by the appellants. (Civ. Code, sec. 1605.) Furthermore, the trial court made its finding on the issue in favor of respondents and against the appellants.

The third and last point made by the appellants is without support. The facts contained in the record are as follows: The contract contained a clause, “The amount of $7500 is to be paid to you (plaintiffs) out of the first production, but not more shall be taken each month than is earned by ten points of my 33% points royalty.” The complaint filed February 7, 1923, alleged, “That said well has been producing for a period in excess of one month prior to the date hereof, and that ten points of defendants 33%% royalty of said oil produced from said property, exceeds in amount the sum of $7500.” The amended answer denied “that 10 points of defendants’ 33%'% royalty of said production from said property exceeded in amount the sum of $7500 or that at the time of the filing of said complaint defendant had received” in excess of $3,700. The trial court’s finding VIII, supra, is fully responsive and is against the appellants. The evidence fully sustained the finding as made. Nothing “was taken monthly.” The whole matter was taken up before the trial court not as to the amount of a monthly deduction, but as a lump sum as of the date of December 31, 1923. Mr. Mitchel testified the defendant had received $97,226.46. How much per month he received was not gone into. The contingency of deductions in excess of 10 per cent never arose. That clause in the contract was waived as neither party ever took any action thereunder. The appellants tendered the issue, but they introduced no evidence showing that the action was prematurely brought. Moreover, the point was never presented to the trial court in any form except by the allegations of the defendants’ answer as quoted above.

We find, no error in the record. The judgment is affirmed.

Langdon, P. J., and Nourse, J., concurred.

A petition by appellants to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on October 25, 1926.