Peterson

In this case the. appellant contends that the judgment and order appealed from should be reversed, because (1) the court below erred in overruling a general demurrer to those portions of defendant’s answer designated as his second and third defenses; (2) because the decision and judgment of the court are based on the findings of particular facts which were not within the issues of the case, and also upon certain facts which were not sustained by the evidence ; and (3) because of a want of finding upon some of the material issues in the case. The case arises out of an action to recover damages for the breach of a contract by which the defendant agreed to build a sawmill upon a tract of land situated on the forks of- Collins creek, in Santa Cruz county, and manufacture into lumber the timber upon it, for which payment at a stipulated price was to be made to the plaintiff. Construction of the mill, the manufacture of lumber thereat, from April, 1880, until January, 1881, and payment to the *608 plaintiff, according to the terms of the contract, were admitted. But it appears at the date of the contract the plaintiff had a flume on the land on which the contract was to be performed, by…