Calanchini

— This is the second appeal in this case. The first ( 84 Cal. 249 ) was by the plaintiff from a judgment against him, in which a new trial was awarded. This appeal is by the defendant from a judgment against him, and from an order refusing him a new trial.

Upon the last trial, the court adopted the former find, ings of fact, adding one or two others. The evidence upon the first trial was, for convenience, read on the second trial, although there was some little additional testimony.

The facts of the case are substantially as stated in the opinion rendered on the former appeal. In some respects, however, they are presented in a different aspect, owing to the fact that the first appeal was by the plaintiff, and this is by the defendant. At the first trial, the facts were found generally as claimed by the plaintiff, but were held not to warrant a judgment in his favor. Defendant, being then respondent, could not object to the sufficiency of the evidence to sustain the findings, or bring up any evidence except such as related to the points made by plaintiff in his motion for a new trial. While, therefore, the opinion rendered upon the first appeal has become the law of the case, and…