Higbie

Appeal from a judgment in favor of plaintiffs and from an order denying the motion of defendant for a new trial.

This action was brought to recover the sum of six thousand dollars which it is alleged defendant agreed to pay to the plaintiffs as the purchase price of a certain planing mill. The agreement, as shown by the evidence set out in the bill of exceptions used on the motion for a new trial, was that in exchange for the total number of shares of stock in the corporation owner of the mill, which stock was all owned or controlled by the plaintiffs, the defendant was to pay the sum of four thousand dollars and deed over a lot of land in the city of San Diego, estimated in the transaction at the value of two thousand dollars. The cause of action as framed in the complaint is based directly upon the alleged promise of the defendant to pay the sum of six thousand dollars, and in that particular is not in accordance with the agreement as shown by the evidence. The action as defined by the complaint, bears none of the marks, which would indicate that the plaintiffs were seeking to recover damages by reason of a failure of the defendant to perform the terms of the contract which the…