property might bring probably about $10 a month, or thereabouts," and that of Peter Ward, a witness on behalf of plaintiff, who fixed it at eight dollars per month.

The sixth finding of the jury, to the effect that defendant repudiated the agreements and claimed to hold the premises as his own, "on or about three years ago," coupled with the fact that he himself testified that for two or three years before suit was brought he had not paid the taxes on the property, as required by section 325 of the Code of Civil Procedure to make out an adverse possession, are conclusive of defendant's plea of the statute of limitations.

There remained, then, nothing to dispose of, except the value of the use and occupation, and if plaintiff was willing to accept the smallest amount named by any witness, defendant who had fixed the value somewhat higher, should not be heard to complain. Assuming as the court did, the lowest sum named as the value, there was upon this question no conflict in the testimony. Where there is no conflict in the evidence, the court may properly direct a verdict. Chenery v. Palmer, 6 Cal. 122; Watson v. Damon, 54 Cal. 278; Page v. Tucker, Id. 121. The error, if any, in instructing the jury as to the amount to be found, inured to the benefit of appellant, and it is no cause for a reversal of the judgment. Upon the other issues the evidence was not only conflicting, it was radically hostile and conflicting, in the extremest sense of the term, and involved considerations peculiarly within the province of a jury to determine; and, under the circumstances, the result reached should not be disturbed, and the judg ment and order appealed from should be affirmed.

We concur: FOOTE, C.; BELCHER, C. C.

BY THE COURT. For the reasons given in the foregoing opinion the judgment and order are affirmed.

(69 Cal. 112)

GIRDNER and others v. BESWICK. (No. 9,843.)

Filed March 20, 1886.

1. APPEAL NOTICE. CONSTRUCTION OF.

Where the language of a notice of appeal is "from an order overruling and denying defendant's motion for new trial upon the judgment made and entered in above entitled action, which said order overruling and denying defendant's motion for new trial was made and entered by said court herein on the sixteenth day of September, A. D. 1884," the appeal taken thereby is from the order denying the motion for a new trial.

2. NEW TRIAL-NOTICE OF INTENTION TO MOVE FOR.

A party has 10 days after the service on him of notice of a decision within which to give notice of his intention to move for a new trial, and therefore, if nothing appears on the record showing service of a notice of the decision, but the notice of intention to move for a new trial properly appears, it can not be held that such latter notice was not in time, so as to constitute a ground for dismissal of an appeal.

8. SAME SETTLEMENT OF STATEMENT ON MOTION-CERTIFICATE.

A certificate appended to a statement on motion for a new trial, as follows.

"I hereby certify that the foregoing statement of the case on motion for a new trial is the statement settled and allowed by me therefor. EDWIN SHEARER, Superior Judge, "-is a sufficient certificate of settlement of the statement within the statute. Code Civil Proc. Cal. § 659, sub. 3.

4. TRIAL-FAILURE TO FIND ON IMMATERIAL ISSUES.

Failure to find on immaterial issues is not error.

5. SAME-FINDINGS OF FACT, WHAT PROPER.

Findings which find only matters of evidence, and are not findings of fact, have no proper place in the findings of the court; and if they do not affect the result of a cause, and afford no ground for reversal, they should be disregarded on appeal, as if they did not appear in the findings at all.

6. APPEAL-FINDINGS-SUFFICIENCY OF.

Various findings reviewed, and held sufficient.

7. SALE OF ANIMALS-WARRANTY OF NUMBER-ACTION FOR BREACH-DAMAGES. The plaintiffs bought of the defendant a band of animals which, by his agreement, the latter guarantied should be 170 head, less five head of horses, which he was allowed to retain. There were then sold a band of 165 animals. Of these plaintiffs got only 117 head, leaving a difference of 48 head, for the value of which, and not for the value of 53 head, the plaintiffs were entitled to recover as damages, and the trial court erred in allowing the value of more than 48 head.

In bank. Appeal from superior court, county of Siskiyou.
Wm. McConaughy and J. V. Brown, for appellant.

W. I. Nichols and H. B. Warren, for respondents.

THORNTON, J. This action was brought to recover $2,000 damages for breach of a contract entered into between plaintiffs and defendant. The contract is as follows: "$4,500.

SISKIYOU CO., CAL., June 20, 1882.

"For and in consideration of the sum of four thousand five hundred dollars, in hand paid, I this day sell my entire band of horses, mules, and jack to J. Girdner and J. W. George, except five head of horses reserved, and I hereby agree, when gathered up, that there shall be one hundred and seventy head, not including the colts of 1882, brand,-hat brand, (———): provided, that there shall not be some disease to kill off, or that it becomes known that they have died from any other cause.

[Signed]

"R. BESWICK."

The breach assigned is that at time of sale by defendant to plaintiffs there were not more than 119 head of the band of animals sold, as defendant well knew, and that plaintiffs, on gathering up said animals, got no more than 117 head of said band, including 2 that had died. From this it appears that there was a deficiency of 53 head. The court gave judgment for $2,000, the value of the 53 head, in favor of plaintiffs. The defendant moved for a new trial, which was denied.

If there is any appeal herein it is from the order denying defendant's motion for a new trial. It is contended that there is no such appeal. The language of the notice of appeal is: From an order overruling and denying defendant's motion for new trial upon the judgment made and entered in above entitled action, which said order overruling and denying defendant's motion for new trial was made and entered by said court herein on the sixteenth day of September, A. D.

1884." The notice was properly entitled in the cause. An order denying the motion for a new trial on the sixteenth of September, 1884, appears in the transcript. The notice in its last clause refers to this order by its correct date as then made, and speaks of it as an order overruling and denying defendant's motion for new trial, and thus defines it the order from which the appeal is taken. It would be an unwarranted construction of this language to hold that this was not the order appealed from. It was plainly intended as an appeal from this order. There is nothing in the language used to mislead the plaintiffs or their counsel as to the order intended to be appealed from. We feel bound to hold it as an appeal from the order denying the motion of defendant for a new trial. The undertaking on appeal, though inartificially drawn, is in our judgment sufficient.

The only appeal here, as above stated, is from the order of the court denying defendant's motion for a new trial. It is now urged that this appeal should be dismissed because the notice of intention to move for a new trial was not given in time. The only notice of intention which we can take notice of here is that referred to in the order denying the motion for a new trial. The other notices appearing in the transcript we cannot take notice of because they are not embraced in the statement or bill of exceptions. Such notices are not a part of the judgment roll, and they must be made to appear as part of the record by a statement or bill of exceptions, as other matters which are not a part of the judgment roll must be made a part of the record. The order denying the motion for a new trial was made on the sixteenth of September, 1884, and is as follows:

"(Title of Court and Cause.)

"At a regular term of the honorable superior court, continued and held within and for said county, at Yreka city, the county-seat thereof, on Tuesday, September 16, A. D. 1884, court met pursuant to adjournment, and was duly called by the sheriff. Present: Hon. EDWIN SHEARER, superior judge, and officers of the court.

"In pursuance of the notice of motion to move for a new trial, filed herein on the sixteenth day of August, A. D. 1884, the defendant, by W. I. Nichols and H. B. Warren, his attorneys, moves the court to set aside the decision and judgment rendered in this action, and grant a new trial thereof upon the following grounds, to-wit: (1) Insufficiency of the evidence to justify the decision, and that the decision was against law. (2) Errors in law occurring at the trial, and excepted to by defendant; and that the statement on motion for new trial, as settled and allowed by the judge of said court, and filed herein on the fifteenth day of August, A. D. 1884, and the pleadings, papers, and records in said case, are herewith presented in support of said motion. "W. I. NICHOLS, "H. B. WARREN, "Attorneys for Defendant.

"And said motion having been submitted to the court for judgment thereon, it is ordered and adjudged by the court that said motion be, and the same hereby is, overruled and denied. EDWIN SHEARER, Superior Judge."

The notice of intention herein referred to is stated to have been filed on the sixteenth of August, 1884. The decision herein was filed on the seventh of March preceding. The defendant had 10 days after notice of the decision of the court within which to give notice of his intention to move for a new trial. When this notice was given does not appear. In fact, it does not appear that any notice of the decision was ever given; nor does it appear that any objection was ever made in the court below that this notice of intention was not given in time. Under these circumstances we cannot hold that this notice was not in time, and the appeal cannot be dismissed on the ground that it was not so given. We are bound to hold, nothing appearing to the contrary, that the notice referred to in the order above quoted was in all respects regular, and was given in time.

It is contended that it does not appear that the statement was properly settled. This contention is directed at the certificate of the judge appended to the statement, which is as follows:

"I hereby cerify that the foregoing statement of the case on motion for a new trial is the statement settled and allowed by me therefor.

"EDWIN SHEARER, Superior Judge."

We are of opinion that this certificate accords with the statute. Code Civil Proc. § 659, sub. 3.

The contention presented herein for consideration is that the court below failed to find on certain material issues. It is said that the complaint contains the following allegation:

"That plaintiffs are informed and believe, and upon their information and belief aver, that the defendant's band of animals so sold as aforesaid to plaintiffs did not, at the time of said sale, or at any time thereafter, consist of 170 head, nor of more than 119 head, exclusive of colts foaled in the year 1882, and that defendant well knew that he did not own more than 119 head of such animals at the time of said sale."

It is also said that this allegation is denied. The only attempt at denial to which we have been referred or which we can find is as follows:

"And upon information and belief avers that he, said defendant, at the time of the making of said sale, was the owner of horses and mules, branded with his brand, and numbering about 170 head in the aggregate, exclusive of the colts foaled in 1882."

The issue as to the number of horses defendant owned at the time of the sale is immaterial. The averment in the complaint to that. effect is of immaterial matter, and, conceding for the argument that it was denied, the issue thus joined would be immaterial. The contract was that the animals referred to should be, when "gathered up," 170 head, and not at the time of sale. We cannot conclude that the sale and the gathering were to be simultaneous. The contract refers to the gathering up as something to be done after it (the contract) was entered into. The fair inference from the language of the contract is that the animals spoken of in it were dispersed over a range from which it was necessary to collect them. As to that part of the

allegation above quoted from the complaint, "that defendant weli knew that he did not own more than 119 head of such animals at the time of sale," the knowlege of defendant here averred is not denied at all. If it had been denied, it would have raised an issue entirely immaterial, for the reasons above given as to the other part of the allegation. The failure to find on immaterial issues is not error.

The third and fourth findings find only matters of evidence. They are not findings of fact, and have no proper place in the findings. They do not, however, affect the result and afford no reason for a reversal of the order. They should be and are disregarded by this court, as if they did not appear in the findings at all.

The findings as to thenumber of animals gathered up are in form sufficient. The requisite facts are found in them in the following words:

"That said plaintiffs have made thorough search in their efforts to gather up the band of animals so purchased by them of said defendant, over the different ranges where said animals were known to range, and did range, and that plaintiffs have used diligence, and made earnest efforts to find all the animals purchased by them of the defendant. That of the whole number of animals purchased by plaintiffs of defendant, to-wit, one hundred and seventy head, plaintiffs have recovered one hundred and seventeen head, leaving fiftythree head of said animals, which plaintiffs have not recovered, and were not able to find and recover."

The above findings are not lacking in sufficiency. The court finds that 53 head of the animals sold were not gathered, and that plaintiffs, on a thorough search, were not able to find and recover them. It finds the value of these 53 horses to be $2,000, and at that sum assesses the damages to plaintiffs. The plaintiffs bought of the defendant a band of animals which, by his agreement, the latter guarantied to be 170 head, less 5 head of horses which he was allowed to retain. There was then sold a band of 165 animals. Of these plaintiffs got one 117 head, leaving a difference of 48 head, for the value of which, and not for the value of 53 head, the plaintiffs were entitled to recover as damages.

We will add here, in explanation, that the 2 head, which it is admitted by the pleadings died between the time of sale and the gathering, should be counted and were properly included in the 117 head as gotten by plaintiffs. The plaintiffs having bought the band of animals on the twentieth of June, 1882, from that time the death of any of them was at their risk, and they must suffer the loss of those which died. The court seems to have so ruled, and in doing so ruled correctly. But in allowing plaintiffs the value of more than 48 head the court erred, and for this error the order must be reversed, and the cause remanded, with directions to the court below to find from the evidence heretofore offered in the cause, and any further evidence which may be offered therein, the value of the 48 head, and having found the same, enter judgment for the sum so found as damages in favor of plaintiffs. Ordered accordingly.