The main contention of the appellants is that the findings of the court that the appellants had not complied with the terms of the "farming contract," as it is termed, in that the land was not cultivated as provided for, and the assessments for water and the taxes were not paid, are not sustained by the evidence. There was evidence sufficient to warrant the court in finding that the appellant T. W. Maples failed, without sufficient excuse, to break and sow a large part of the ground. It is conceded that the water assessments were not all paid. It appears that the appellant paid the greater part of the assessments, and he seeks to avoid the effect of a failure to pay the balance by showing that the water company was at the time indebted to him in a sum sufficient to make up the amount. But conceding this, it furnished no excuse for a failure to pay an assessment which was against the respondent, not him, and against which his claim was not an offset. He should have paid the assessment, and looked to the companies for the amount due him from them.

As it was conceded that the respondent was the owner of the legal title to the property, the appellants were bound, in order to prevent a recovery, to make out a complete equitable title and the right to possession thereunder. (Blum v. Robertson, 24 Cal. 141; Love v. Watkins, 40 Cal. 565; 6 Am. Rep. 624; Willis v. Wozencraft, 22 Cal. 615.) This they failed to do.

It is urged that, as to the failure to make the payments referred to, time was not of the essence of the contract, and that as it appears that the money was tendered soon after, and was tendered and paid into court, with the answer, this was sufficient. But if this be conceded, it cannot aid the appellants' case, as the failure to comply with the contract in respect to the cultivation of the land could not be thus remedied, and such failure was sufficient to defeat their equity.

There was evidence on the part of the appellants tend

ing to show that a part of the land was not broken because of the extreme dry weather. The appellant T. W. Maples was asked this question in that connection: "What were your instructions, provided the rains should come, as to planting that land after that?" This was objected to, and the objection was sustained. We see no error in this ruling. The appellant was allowed to show that the season was a very dry one, as a reason for his having failed to plow the ground. What his instruc

tions to his men were, is case the weather should change, was immaterial.

1

The court also sustained an objection to this question: "State whether or not you have performed all the conditions and covenants mentioned in exhibit 2." The ruling was right. The question called for a conclusion. It was asking the witness to decide a question that was for the court alone to determine from the facts proved.

The appellant also offered to prove that the respondent had, before and after the making of the agreements above mentioned, verbally promised to let him have money to carry out the farming contract, and the evidence was excluded. There was no error in this ruling. The promise was not a part of the contract in controversy, nor did it appear to have been made upon any consideration. Therefore evidence to prove it was immaterial and irrelevant.

There is objection made to a ruling of the court sustaining an objection to a question to the appellant, whether he did certain work "with regard to building ditches or conveying water upon the land," but the transcript does not show any such ruling by the court.

It is contended that certain other findings of the court were not sustained by the evidence, but we think there was evidence to support them.

Error is assigned on the ruling of the court, against the right of the appellant to prove the indebtedness of the water companies to him, as an excuse for the failure

For the reasons

to pay the balance of the assessments.
above stated, we think the ruling was correct.

The fact that the appellants had sowed alfalfa and planted fruit-trees on the land could not defeat a recovery in this action, it appearing that he had failed to make good his equitable title by a performance of his part of the contract.

Willis v. Wozencraft, 22 Cal. 613, relied upon by the appellant, is not to the contrary, as in that case it was not claimed that the defendant had failed in any respect to comply with his contract, nor was the question of improvements involved in the case.

Certain special issues were submitted to a jury, and answered in favor of the appellants. The court disregarded these findings, and rendered findings of its own in favor of the respondent. The legal title of the respondent having been admitted, the matter to be tried was purely equitable, and being so the findings of the jury were not binding on the court. (Freeman v. Stevenson, 63 Cal. 499; Sweetser v. Dobbins, 65 Cal. 529.)

We think there was evidence sufficient to sustain the action of the court in disregarding the findings of the jury and rendering findings in favor of the respondent. Judgment and order affirmed.

THORNTON, J., MCFARLAND, J., SHARPSTEIN, J., and PATERSON, J., concurred.

Rehearing denied.

[Nos. 11678, 11699. Department Two.-June 11, 1889.] OAKLAND PAVING COMPANY, APPELLANT, v. EMMA BAGGE ET AL., RESPONDENTS.

STREET ASSESSMENT-PUBLICATION OF NOTICE OF INTENTION-FINDINGS-APPEAL FROM JUDGMENT.-When the superior court, in an action to enforce a street assessment, finds all the facts which are necessary to sustain the validity of the assessment, including facts showing a sufficient publication of the notice of intention, but draws an erroneous conclusion of law from the finding that the publication was void and insufficient to give jurisdiction to award the contract for the street improvement, and consequently renders judgment for the defendant, upon appeal by the plaintiff from such judgment, a judgment will be rendered in favor of the appellant upon the findings.

APPEAL REVERSAL OF JUDGMENT UPON FINDINGS-AWARD OF NEW TRIAL.-When it is conceded by the respondents that the findings do not support the judgment, and the only question is whether judgment should be rendered for the appellant upon the findings, or whether there should be an award of a new trial, judgment will be rendered for the appellant without awarding a new trial, when a correct conclusion of law upon the findings will justify such course, and there is no reason to suppose that the evidence upo new trial will vary the rights of the parties.

APPEAL from a judgment of the Superior Court of the county of Alameda.

The conclusion of law drawn by the superior court from its findings of facts was as follows: "That the eleven successive daily publications of the resolution of intention herein, of which eight were made in regular issues of the said Transcript newspaper, two in special issues as heretofore found, and one on a Sunday, were less than the ten secular publications in regular issues of the paper, required by the statute, which enables the city council of Oakland to acquire jurisdiction to order street work after notice of their intention so to do, in the form of a resolution describing the work, and signed by the clerk of said council, has been published for a period of ten days'; and that said jurisdiction was never acquired; and that the succeeding proceedings, assessment, diagram, and and warrant were otherwise regular

and sufficient in form, but were wholly void for want of any acquisition of jurisdiction; and therefore that the plaintiff has and holds no lien upon the lot and parcel of land described in the complaint; that the defendants herein are entitled to a judgment in due form, that the plaintiff take nothing by this action, and that the defendants have their costs from the plaintiff." The further facts are stated in the opinion.

J. C. Martin, H. Vrooman, and C. T. H. Palmer, for Appellant.

E. F. Preston, for Respondent.

FOOTE, C.-In both of the above-styled causes, the questions involved are the same, and a decision as to one is conclusive as to the other.

The appeals were taken by the plaintiff from judgments rendered in favor of the defendants, and are here upon the judgment roll alone. There was no motion for a

new trial in the court below.

Upon the first call of one of the cases, respondents, who had not then filed any points or authorities, offered to allow the judgment to be reversed, and the cause to be remanded for a new trial. To this appellant would not consent, and filed additional points and authorities, urging a reversal of the judgment, and that the court below be directed to enter a judgment in its favor on the findings. This is resisted by respondents, on points and authorities filed in one of the causes, urging that the judgment should be reversed and cause remanded. for a new trial.

The action was upon a street assessment. The court below, from the findings, drew the conclusion of law that the city council of Oakland never acquired jurisdiction to order the street-work on which the assessment was made, because of the want of sufficient publication of "the notice of intention."