$2,250, to be paid as follows: On July 31st, seventy-five per cent of the cost of all labor and material then furnished. Other payments were to follow in like manner.

On August 15th petitioners entered into another contract with said board to install in said building a ventilating plant for which petitioners were to receive $3,988. On September 17, 1903, petitioners presented a demand against Merced County in due form and duly verified, which claim or demand is as follows:

"Demand of Russell-Vail Engineering Co. on the treasury of the county of Merced, state of California, for the sum of two thousand dollars, being for part payment for heating system.

"Sept. 17, 1903. Part payment on heating system, Co. Hospital, $2000.00."

This claim was allowed September 21, 1903, the county warrant issued and presented to the county treasurer for payment on September 24th, and indorsed "not paid for want of funds." On December 11, 1903, it was again presented and was paid.

On November 5, 1903, the demand which is the subject of this action was presented to the said board, and is as follows:

"Demand of Russell-Vail Engineering Co. on the treasury of the county of Merced, state of California, for the sum of sixteen hundred and eighty-seven and 50-100 dollars, being for heating plant contract at county hospital.

"November 4th, first payment on account of contract for installing of steam heating plant at county hospital, $1687.50."

This demand was for seventy-five per cent of the actual cost of labor and material furnished up to July 31, 1993, under the provisions of the contract of June 6, 1903. The claim was duly sworn to, and on the eleventh day of November the board allowed it. The auditor drew his warrant, which was presented to the treasurer and on November 16th was indorsed, "Not paid for want of funds." The warrant was presented again on January 4, 1904, when it is admitted there were funds on hand sufficient to pay it, but payment was refused.

The trial court found the facts as above stated, and found further that petitioners intended said two-thousand-dollar

claim to be a payment on the contract of August 15th, and that it was a claim on said ventilation contract, and that the county treasurer had paid the same, believing it to be a claim founded on said ventilating contract on June 6, 1903.

As conclusions of law the court found that appellants were estopped from showing that their verified claim for two thousand dollars was and is not a payment on the contract for the heating plant.

We think the conclusion just mentioned and the findings upon which it is based support the judgment, and without intimating any opinion as to whether the county is estopped to question the validity of the contract, or whether the board should have advertised for plans and specifications, or whether the heating plant comes within the provisions of subdivision 8 of section 25 of the County Government Act of 1897, so as to require thirty days' notice for bids, and basing our opinion on the one ground that the findings above mentioned support the judgment, we affirm the judgment.

McLaughlin, J., and Chipman, P. J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on November 3, 1905, and the following opinion was then rendered:

BUCKLES, J.-Application for rehearing. We have gone carefully over our opinion rendered herein, and reviewed the facts in the case, and considered the matters suggested in the petition herein, and can see no reason for granting a rehearing.

If true as alleged that the heating contract was extended and made a part of the ventilating plant, and plaintiff was to have $2,250 for the heating plant and $3,988 for the ventilating plant, making $6,238 for both contracts, and it having received two thousand dollars thereon, or on either of the contracts, there would remain due from the county the sum of $4,238. And still we do not pass upon the validity of either contract.

We are still of the opinion that the findings support the judgment rendered in the court below.

Rehearing is denied.

McLaughlin, J., and Chipman, P. J., concurred.

A petition to have the cause heard in the supreme court after judgment in the district court of appeal was denied by the supreme court on December 4, 1905.

[No. 73. Second Appellate District.-October 7, 1905.]

H. E. DOWNING, Respondent, v. D. F. DONEGAN, and HELEN DONEGAN, Appellants.

ACTION UPON NOTE-EQUITABLE DEFENSE-SUFFICIENCY OF FINDINGS— OMISSION-PRESUMPTION.-In an action upon a note where all other issues were sufficiently covered by the findings, the omission to find upon an equitable defense pleaded in the answer will not have the effect to invalidate the judgment for the plaintiff where it does not appear by the statement or bill of exceptions that evidence was submitted in relation to such issue; but it must be presumed in such case that there was no evidence to support it. ID. EXCESS IN AMOUNT FOUND DUE-COLLATERAL SECURITY-PRINCIPAL DEBT-MODIFICATION OF JUDGMENT.-Where it appears that the note in suit was given as collateral security, the amount recoverable thereupon cannot exceed the principal debt; and where the findings show an excess in the amount found due above that debt, that judgment must be modified accordingly.

APPEAL from a judgment of the Superior Court of Los Angeles County. M. T. Allen, Judge.

The facts are stated in the opinion of the court.

Charles H. McFarland, for Appellants.

Bernard Potter, for Respondent.

SMITH, J.-Appeal from a judgment for the plaintiff. This is a suit by the assignee of a note of date May 9, 1898, executed by the defendants to one Joyce, the plaintiff's assignor, for the sum of twelve hundred dollars, with interest at the rate of eight per cent per annum from date, com

pounded quarterly. The complaint alleges that no part of said promissory note, or the interest thereon, has been paid, and that the amount thereof, with interest, is now due and owing from the defendants. The answer denies these allegations, or that there is due to the plaintiff the amount claimed or any amount, and further alleges that the amount mentioned in the note, with interest, has been fully paid and discharged. There is also what is called a "supplemental and amendatory and additional answer," alleging that the note executed to Joyce was secured by a chattel mortgage upon certain horses; and also setting up the equitable defense stated below. This document, as it is written, is without coherence or sense, by reason of the words "plaintiff" and "plaintiff and his wife" being written therein, instead of the words "defendant" and "defendant and his wife," which were plainly intended. Correcting it in this respect, it appeers from the allegations therein contained that certain lands of the defendants mortgaged to one Hawkinson had been sold under foreclosure to the mortgagee, and that there was an agreement between defendant and Joyce for the latter to redeem from the sale, and thus to acquire title and to hold the same as an additional security for the note in suit and the money paid by him for redemption. It is further alleged that Joyce sold the property for the sum of sixty-five hundred dollars, which he has kept for his own use. It does not appear what amount was paid by Joyce for the redemption. But it is alleged, in effect, that at the time of the sale the amount due on the note did not exceed the sum of five hundred dollars, and that the proceeds of the sale were sufficient to satisfy the defendant's indebtedness to the plaintiff, and leave the latter indebted to the former; and, in the absence of special demurrer, this must be regarded as sufficient.

The findings of the court are, in effect: That the note sued on was executed by the defendants to Joyce as collateral security for the payment of a note previously executed to him by the defendant Donegan for the sum of two thousand dollars, of date June 1, 1897; that some months prior to the execution of the note sued on (March 5, 1898) there was an account stated between Joyce and Donegan, showing a balance on the older note of $1,448, bearing interest at the rate of eight per cent per annum; "that on the 26th day of Novem

ber, 1900, the sum of $660, and no more, was paid on account of said amount due, as per said account stated"; and "that the amount of the principal and interest now due and unpaid, according to the terms of said account stated, and the said note sued upon herein, is $1,416.62"; for which amount judgment was entered.

The several objections urged by the appellants to the judgment are, in effect: That the court has failed to find upon the issues raised by the "amendatory answer"; also, that it has failed to find on the issue as to payment raised by the original answer; and that the actual findings on which the judgment is based are outside the issues in the case.

As to the issues referred to in the first point, there is obviously no finding; and the only question, therefore, is whether the case is one in which it is to be presumed, in support of the judgment, that there was no evidence on those issues. The rule on this point, as expressed in the leading case, after very careful consideration,-is: "The findings must be sufficient to support the judgment, and must contain nothing inconsistent with it, but a failure to find upon some issue, a finding upon which would simply have the effect of invalidating a judgment fully supported by the findings made, will not be held ground for reversal, unless it is shown by statement or bill of exceptions that evidence was submitted in relation to such issue." (Himmelman v. Henry, 84 Cal. 106, 107, [23 Pac. 1098]; Winslow v. Gohransen, 88 Cal. 451, [26 Pac. 504]; Dolliver v. Dolliver, 94 Cal. 646, [30 Pac. 4]; Southern Pacific R. R. Co. v. Dufour, 95 Cal. 621, [30 Pac. 783], Paterson, J.; Estate of Carpenter, 127 Cal. 587, [60 Pac. 162]; Eva v. Symons, 145 Cal. 205, [78 Pac. 648].) The rule is stated somewhat more broadly in some other cases, but what is said by the court must be construed with reference to the facts involved, which were such as to bring the cases within the application of the rule as originally expressed. (Woodham v. Cline, 130 Cal. 499, [62 Pac. 398]; De Tolna v. De Tolna, 135 Cal. 578, [67 Pac. 1045]; Horwege v. Sage, 137 Cal. 539, [70 Pac. 631].)

The rule is to be understood, therefore, as applying only to cases where there are findings sufficient to support the judgment. Nor can it well be carried further without abrogating altogether the provisions of sections 632 and 634 of the Code