Budd

This is an appeal by plaintiff from an order denying his motion to vacate the judgment and enter a different one upon the ground that the conclusions of law were incorrect, erroneous, and not consistent with nor supported by the findings of fact. No appeal was taken from the judgment, and consequently in that state of the record none of the facts of the case can be considered on this appeal except those embraced in the findings. (Wester velt v. McCullough, 68 Cal. App. 198 [ 228 Pac. 734 ].)

The action was one by plaintiff as assignee of C. A. Ricks to recover $1875 claimed to be due as real estate commissions. The complaint contained three causes of action. The first was based on a quantum merwit, the second on an express contract to pay the sum .above mentioned, and the third on an account stated. The trial court found that defendants were indebted to Ricks in the sum of $875 less the sum of $500 which it found was due from Rieles to defendants, and judgment was entered in plaintiff’s favor for the net sum of $375. With reference to the first and second causes of action, the court found that defendants became indebted to Ricks for work, labor and services performed, which was…