Higgins

Plaintiff brought this action to recover certain-royalties on certain bituminous rock and liquid asphaltum mined by defendants, for which they agreed to pay “the sum of fifty cents per ton for each and every gross ton.” The trial court, found “that the term ‘gross ton’ as used in the lease .... means two thousand two hundred and forty pounds,” and gave judgment for plaintiff accordingly. From this judgment plaintiff appeals on the judgment-roll alone. His contention is, that the ton contemplated by the contract is a ton of two thousand pounds. A contract of precisely the same terms, in respect of the question now' presented, was before this court in Higgins v. California etc. Co., 109 Cal. 304 . It was held in that ease that the ton referred to, upon the .facts as they there appeared, was “equal to two thousand pounds avoirdupois, and no more.” The only question involved here is whether the finding above quoted supports the judgment. Áppe&mt claims that this “is simply a conclusion of law based upon the contract,” and, “if a finding of fact, it is error,, as it is found from the conti^ct itself.” By section 3215 of the Political Code it is provided that ^“Twenty hundred weight…