ROBERT BURNETT v. ABEL STEARNS, PIERE (or PEDRO) DOMEC, as Receiver of the Personal Property of Abel Stearns, PIERE (or PEDRO) DOMEC, in Person, S. C. and JOHN FOY, as " S. C. Foy & Brother," EPHRAIM N. MORSE, GEORGE H. HOWARD, WILLIAM E. DODGE, WILLIAM E. DODGE, Jr., JAMES STOKES, ANSON G. PHELPS, STOKES and D. W. JAMES, Partners, Etc., and JOHN PARROTT, 33 Cal. 468

By the Court, Bhodes, J. : The plaintiff objects to the defendants’ statement on motion for a new trial, on the ground that the notice was not served and the statement was not filed within the time prescribed by the Practice Act. The objection cannot be sustained. Under

section one hundred and ninety-five, as amended in 1866, the party intending to move for a new trial has, in all cases, excejrt when the action has been tried by a jury, ten days within which to give notice of his intention after receiving written notice of the filing of the findings, or of the rendering or filing of the decision. It does not appear that such written notice was given in this case, and the defendant was therefore within time. The statement also was filed within the statutory time after the notice was given.

The first ground of the motion is that the evidence does not justify the findings, because the “ note and mortgage are made payable in United States gold coin or legal tender notes, at the option of the defendant.” When it is found or admitted that the note upon which the suit is brought was made by the alleged maker, all the terms of the promise, including the kind of money in which payment is to be made-, is to be ascertained by an inspection and construction of the instrument. In Lane v.

Gluckauf, 28 Cal. 288, we had under consideration a note substantially like those in this case, and upon_which the Court below had rendered judgment for coin only; and in affirming the judgment it was held that the promise on the part of the maker was to pay gold; that the intention was to secure payment in that kind of money if it could be lawfully enforced; but if that could not be done, to secure payment in legal tender notes at their market value in San Francisco when converted into gold; and that this latter stipulation was not inserted in the contract for the benefit of the maker, nor to give him the election of the kind of money in which he might make payment.

And it was further held that the Specific Contract Act afforded for cases of that sort the remedy of specific performance. The construction given to the note in that case is applicable to those in suit in this case. The second ground is that the notes and mortgages are not authorized by the Specific Contract Act; and the third ground is that the judgment should not have been for any specific kind of money, but for money generally. Both of these points, as we have seen, were determined adversely to the defendant in Lane v. Gluckauf.

The point that the judgment is erroneous in the respect that it adjudges the whole amount to be due to the plaintiff in gold coin, when, in fact, the larger of the two notes is payable in “ United States gold and silver coin,” is well taken. It arises upon the pleadings and judgment—the note being set out in the complaint—and needs not the aid of a motion for a new trial for its presentation. It is true that the Court found that the amount of the larger as well as the. smaller note was due in gold coin, but this was contrary to the averments of the complaint, which were admitted by the defendant.

The failure to deny under oath the execution of the note when copied into the complaint or annexed to it, amounts, under the statute rules of practice, to the admission of its execution.. There can be in such case no issue of fact upon the tenor or effect of the note, and a finding upon these mat-, ters, whether it agrees or disagrees with the terms of the note, is wholly nugatory. The finding should bé confined to the facts in issue. The province of the Court in respect to facts is to determine but not to raise the issue.

It is insisted on the other side that it will be presumed the Court found the fact in question from competent evidence. The answer is, it will not be presumed that evidence was introduced to contradict the admission of record. Perhaps this error occurred through inadvertence, but it is clearly an error under the provisions of the Specific Contract Act, which requires the judgment for a specific kind of money to follow the contract.

The Court below is directed to modify the judgment in respect to the amount due on the promissory note first described in the complaint, so that it shall be adjudged to be due and collectable in United States gold and silver coin.