Langan

— I concur in the order dismissing the appeal from the judgment. I also concur in the order reversing the order denying the motion for a new trial, on the ground that the findings are uncertain and conflicting.

The contract attached to the note does not, in express terms, declare that the considerations therein named are all (lie considerations for the three-thousand-dollar note, and I think that, under the decision of this court in Billings v. Everett, 52 Cal. 661 , the court did not err in its ruling. The matter referred to was expressly alleged as *196 a separate defense in the answer, no motion to strike out, or demurrer, was filed, and it was treated at the trial as properly in issue. The plaintiff was himself the first to introduce oral testimony on that issue.

Rehearing denied.

— Action for the balance alleged to be due upon a promissory note executed by defendant's to plaintiff on April 25, 1885, for the sum of two thousand dollars.

The answer alleges that in December, 1884, the defendant Thomas F. Langan purchased from plaintiff an undivided one-fourth interest of all the copartnership property belonging to a firm of which plaintiff was a member, for the sum of three thousand dollars, and in payment thereof then executed to plaintiff his promissory note for said sum; that he afterwards paid one thousand dollars thereon, and then took up said note, and he and the other defendant, his wife, gave to plaintiff the note mentioned in the complaint for the balance due on account of said purchase; that is, as we construe the answer, for the balance due upon the promissory note executed in December, 1884. The answer then, in a separate defense, alleges that a part of the copartnership property purchased by defendant consisted of two land-warrants, and that said warrants were a part of the consideration for which the note referred to in the complaint was given; that plaintiff agreed to locate them upon lands, and convey said lands so located thereunder, to…

dissent. I see no contradiction in the findings, and no error committed in the trial of action. I think the order should be affirmed.

Garoutte, J., Harrison, J., and Beatty, C. J., concurred.