— The complaint filed in this action is in this language: —

The bond mentioned therein is as follows: —

A demurrer was interposed to the complaint, and overruled; a motion for a nonsuit was made, and denied; the cause was then tried, and resulted in a judgment for ...¿the plaintiffs in the sum of thirteen hundred and fifty dollars, and costs.

A notice of motion for a new trial was served and filed in due season, and upon the hearing of the motion the trial court dismissed it, upon the theory, evidently, that as the judgment made and entered had been appealed from when the motion for a new trial came on for hearing, the court below had lost jurisdiction to determine it.

This view of the matter is untenable, and the court should have heard the motion, and either granted or denied it, upon the bill of exceptions presented, which is a part of the record here on the appeal from the order of dismissal, the action of the court being, in legal effect, a denial of the motion for a new trial. (Code Civ. Proc., sec. 946; Naglee v. Spencer, 60 Cal. 10 ; 1 Hayne on New Trial and Appeal, p. 26, sec. 2; p. 494, sec. 166; Carpentier v. Williamson, 25 Cal. 167, 168 ; Chase v. Evoy, 58 Cal. 352 .)

The case, then, is to be considered here as on appeal from the judgment and an order denying a new trial.

*82 As against the demurrer as filed, we think the complaint sufficient, although a special demurrer to it as not properly alleging damages suffered might have been sustained.

After making certain findings of fact based upon evidence adduced on the t.ial, the court reached the conclusion of law that the plaintiffs should recover “ the value of equity over and above the niortgage on the real estate in San Francisco conveyed by the plaintiffs to defendant Jones, which was $1,000; also the value of the San Diego lot, amounting to $350; making, in all, $1,350, with interest from commencement of the suit.”

And the judgment of the court rendered thereupon went upon the idea that Jones and his sureties were responsible to the plaintiffs, by the terms of this bond, for the non-delivery of the warrants, to the extent of the difference between the value of certain real estate, not mentioned or referred to in the bond, sold and conveyed to defendant Jones, and the mortgage thereon made be fore that time in favor of other parties, which Jones had assumed to pay as a part of the purchase price.

This contract did not assume to fix the amount of damage in anticipation of a breach of the obligation of the instrument, as condemned by section 1670 of the Civil Code, nor does it appear from it or the evidence that it would be impracticable or extremely difficult to fix the actual damage, as allowed by section 1671 of the Civil Code.

The court below, as we think, improperly admitted evidence against the objection of the defendants, and made findings thereon upon the theory that the measure of damages recoverable for the failure to deliver the warrants at the time and place specified in the bond was the difference between the value of certain real property which the plaintiffs had sold and deeded to the defendant Jones (which was the origin of the execution of the bond), and the amount of a certain mortgage debt existing *83 as against a portion of the property conveyed; that is, the sum of $1,350.

It is found, upon sufficient proof, in the twelfth and thirteenth findings of fact, “ that on the first day of April, A. D. 1881, and for several months thereafter, the market value of láud-warrants specified in finding 7 has been $47.50 each, at Austin, Texas, and readily obtainable in and on the market at said city of Austin, Texas, at said price of $47.50 each, on said first day of April, A. D. 1881, and at any time for and during the several months thereafter, if they had seen fit so to do; that said warrants set out in finding Ro. 7 are of the same class and kind that the defendant Jones was to deliver to the plaintiffs, under the terms of said undertaking, and that they are and were free from all liens and encumbrances and transfer fees, and are and were of the character to be delivered by said Jones to said plaintiffs; that each warrant is locatable on 640 acres of land, on the conditions in said warrant specified.”

It would appear, therefore, that the measure of damages recoverable in the action was the value of the warrants as specified in the twelfth finding, viz., $237.50, with legal interest on same from the [time when they should have been deposited according to the terms of the bond, subject to a reduction of $315 for amount due on the note. As it appears that the trial court erroneously measured the damages by a different rule, to the manifest prejudice of the appellants, the judgment and order should be reversed, and the cause remanded for a new trial.

Vanclief, 0., and Fitzgerald, C., concurred.

For the reasons given in the foregoing opinion, the judgment and order are reversed, and the cause remanded for a new trial.