Coburn

This action was brought to recover damages alleged to have been suffered by plaintiffs by reason of the alleged failure of the defendant to comply with the terms of a contract entered into by it with plaintiffs. Plaintiffs had judgment for $6,397.50, and defendant appealed from the judgment and from am order denying its motion for a new trial. The appeal from the judgment has heretofore been dismissed for the reason that it was not taken within six months after the entry of the judgment. Upon the appeal from the order denying the motion for a new trial the questions suggested in defendant’s closing brief as to the sufficiency of the complaint, and as to whether the findings sustain the judgment cannot be considered. (Swift v. Occidental M. amd P. Co., 141 Cal. 161, 165; Sharp v. Bowie, 142 Cal. 462.)

It is contended that the evidence is, in several particulars, insufficient to sustain the findings of the trial court.

By the contract between the parties, the defendant agreed to take all the clay on the lands of plaintiffs, “that is suitable for the manufacture of cement, the fact of its being suitable to be determined by the chemist of the party of the first part” (defendant).…