GIEUSEPPE BONNELFILLIO et al., Respondents, v. H. L. RICKS, as Special Administrator, etc., Appellant, 214 Cal. 287

THE COURT. In this action the appellant advances two major points in support of his appeal. It is first contended that the findings are not supported by the pleadings. As the appeal is upon the judgment-roll, we must presume that all facts found by the court and not within the pleadings in the case were by agreement of court and counsel put in issue during the trial of the action. (McDougald v. Hulet, 132 Cal. 154 [64 Pac. 278]; Fighiera v. Radis, 180 Cal. 660 [182 Pac. 418].) Appellant’s second contention is that the judgment is not supported by the findings.

The particular point made by appellant in this contention is that while the findings show that the plaintiffs paid to the defendant the sum of $3,500 on the purchase price of the land, which the defendant failed to convey to plaintiffs under their contract, the judgment calls for $5,000 damages against the defendant for this breach of contract. There might be some merit in this contention were it not for the fact that the findings show that this payment of $3,500 was made some nine years prior to the date of the findings.

Simple interest at the legal rate upon the sum of $3,500 for this period of time, added to the principal sum would more than equal the amount of the judgment. It is unnecessary, we think, to specially mention other points made by appellant. The mere statement of them would show their inapplicability to the facts in this case. The judgment is affirmed.