Appeal by defendant from judgment of the Superior Court of the County of San Bernardino, and from an order vacating and setting aside the decision and conclusions of law in favor of defendant and thereupon deciding and filing conclusions of law in favor of plaintiffs. Rolfe, J.

Action on contract. The complaint set forth the execution of an agreement in writing, its performance by plaintiff, and a breach thereof by defendant.

The agreement was as follows:

“ Memorandum of agreement made and entered into this twenty-eighth of January, A. D. 1882, by and between EL M. Barton of the first part and Condee & Marshall, parties of the second part, witnesseth that whereas the said party of first part is the owner of two hundred and twenty acres of land in Lugonia district, known as the Barton tract, in San Bernardino County, State of California, together with twenty-two shares of water in Sunnyside division of the North Fork ditch of the Santa Ana River, and is desirous of selling the same through the agency of the said Condee & Marshall.

“ Now, therefore, it is hereby agreed between the parties hereto that the said tract of land together with the water rights shall and is hereby placed in the hands of the said Condee & Marshall, as agents for sale, on the following terms, to wit,—the tract is to be platted and mapped and advertised, and sold in such tracts as the said Condee & Marshall shall see fit, and all realized over fifty-five dollars per acre shall be retained by said Condee & Marshall as commission for the sale of said tract of land and water rights, and the said Barton agrees to receive not less than one quarter cash down on each sale made by Condee & Marshall, and upon receipt of said payment the said Barton agrees to execute a bond for a deed allowing the balance, three fourths, to be paid in equal payments of one, and two, and three years, at ten per cent, per annum interest; interest payable semi-annually; and it is further agreed that the said Condee & Marshall shall have one year from date hereof to affect the sale of said tract of land and water right as above agreed.

“ Dated at San Bernardino, January 28, 1882.

“H. M. Barton,

“ Condee & Marshall.”

Defendant’s bill of exceptions shows the following facts: In this case, on this third day of July, 1882, the Court signed and filed findings of fact and conclusions of law. The con- ■ elusions of law are in the following words, to wit: “As conclusions of law, the Court decides that the plaintiffs are not entitled to any judgment against the defendant, but that the defendant should have judgment against plaintiffs for his costs and disbursements in this action expended and incurred.”

Immediately upon the announcement by the Court of its decision and the filing of the said findings and conclusions of law, the plaintiffs made their motion, to wit: The Court having filed its findings in this case, plaintiffs move the Court for judgment in their favor on the findings of fact as filed, and to set aside the conclusions of law therein made, and give judgment for plaintiffs as prayed for. Thereupon the Court ordered that entry of judgment be stayed till said motion was heard. Subsequently, on September 4, 1882, upon argument of said motion, and before the Court ruled on it, the defendant objected to its being allowed, on the grounds: 1. That the Court having filed its findings of fact and conclusions of law, and made its decision, that the action of the Court can not be reviewed except upon a motion for a new trial or appeal from the judgment. 2. That the findings of fact do not support a judgment for plaintiffs.

The Court afterwards, on September 5, 1882, made and caused to be filed this order and decision: “ In the above-entitled cause, the Court having heretofore filed its findings of fact and conclusions of law, and thereupon the plaintiffs, by their attorney, having moved the Court for1 judgment in their favor upon the facts as found by the Court, and the same having been fully considered by the Court, it is now ordered that the aforesaid conclusions of law in favor of the defendant be vacated and set aside, and upon the facts so found as aforesaid, the Court decides and finds as conclusions of law, that plaintiffs are entitled to judgment against the defendant for the sum of four thousand four hundred dollars, together with costs of this action. Let judgment be entered accordingly.”

Thereupon judgment was entered for plaintiffs. After decision in department, a petition for hearing in bank was presented and denied.