Pirrie

This is an action of claim and delivery for a quantity of flour by the Wheatland Mill Company against William Pirrie.

Judgment was rendered for the defendant for the return *461 of the flour which the plaintiff had received, or the value thereof and interest. From that judgment, and an order refusing a new trial, the plaintiffs have appealed.

The defendant appeals from an order retaxing costs, by which the sum of one hundred dollars, claimed as percentage under section 6 of the act of the legislature to he found in the Statutes of 1865-66, at page 66, in relation to fees in the city and county of San Francisco, was struck from his memorandum of costs.

The appellant contends that the trial court committed error “in denying their request that it would pass upon certain propositions of law presented by plaintiff, and give the same as applicable to the case, and in refusing to pass upon said propositions and to rule that the same were correct and applicable to the case.”

The cause came on to be tried, the court sitting without a jury, on the twentieth day of March, 1888, and on that day, upon the evidence produced, was considered and heard by the court; and it was then submitted…