Lloyd, Cheney & Geibel, and Ovila Normandin, for Appellant.

Chas. S. McKelvey, for Respondent.

WORKS, J., pro tem.-The amended complaint in this action asks for judgment for the contract price of milk delivered during the months of January and February, 1915, at the special instance and request of the defendant. The answer alleges that the milk was delivered pursuant to the terms of a written contract between the parties and that none was delivered after February 10, 1915. A copy of the contract is attached to the answer as an exhibit. By it Karales agreed, under date of December 1, 1914, to sell and deliver daily, and the Creamery Company agreed to buy, all the milk produced by Karales, being not less than four hundred pounds per day from not less than thirty-five cows, for a three-months period from December 1, 1914, to March 1, 1915, at an agreed price per pound of butter fat content of the milk, payment to be made before the 15th of each month for deliveries during the preceding month. The contract also bound Karales to furnish the milk from healthy, wellfed cows, to keep his dairy in a clean and sanitary condition, and to protect the milk with a proper canvas covering while it was in transit to the company. It also provided that if the delivery of milk should be interfered with by strikes, or other specified untoward occurrences, then the contract should be suspended only during such interference. The trial court found the facts as alleged in the answer, with the further finding, in effect, that Karales had stopped the delivery of milk on February 10th because he had sold his cows, but rendered judgment in his favor. The appeal is from the judgment.

Notwithstanding the fact that the milk was to be paid for monthly, the contract was indivisible and entire, and the plaintiff committed a breach of its provisions by ceasing delivery on February 10th. (McConnell v. Corona City Water Co., 149 Cal. 60, [8 L. R. A. (N. S.) 1171, 85 Pac. 929]; Wood, Curtis & Co. v. Seurich, 5 Cal. App. 252, [90 Pac. 151]; Los Angeles Gas & Elec. Co. v. Amalgamated Oil Co., 156 Cal. 776, [106 Pac. 55]; and one who himself breaches a contract, without excuse, cannot recover in an action upon

the contract for a breach of its terms by the other party. (Wood, Curtis & Co. v. Seurich, supra; Los Angeles Gas & Elec. Co. v. Amalgamated Oil Co., supra; California Sugar Agency v. Penoyar, 167 Cal. 274, [139 Pac. 671]; Los Angeles Gas & Elec. Co. v. Amalgamated Oil Co., 168 Cal. 140, [142 Pac. 46].) The fact that Karales sold his cows and went out of the dairy business was plainly no excuse or justification for his breach of the contract.

The judgment is reversed.

Conrey, P. J., and James, J., concurred.

[Civ. No. 2085. Second Appellate District.-February 6, 1918.] W. C. SMITH, Appellant, v. A. J. MEADE, Respondent. APPEAL INSUFFICIENCY OF EVIDENCE-REVIEW-SPECIFICATIONS.-On an appeal from a judgment presented on the judgment-roll and a brief bill of exceptions, the insufficiency of the evidence to sustain the findings cannot be considered, where the bill of exceptions contains no assignment of error, either in general or particular terms.

APPEAL from a judgment of the Superior Court of Los Angeles County. Leslie R. Hewitt, Judge.

The facts are stated in the opinion of the court.

Bicksler, Smith & Parke, for Appellant.

Avery & French, for Respondent.

JAMES, J.-This appeal is one taken from a judgment entered in favor of the defendant. It is presented on the judgment-roll and a brief bill of exceptions. The action was upon a promissory note executed by a corporation of which the defendant was treasurer, the payment of which note was guaranteed in writing by the defendant. Recovery was sought against the defendant by reason of his contract of guaranty. In the complaint it was alleged that subsequent to the maturity of the promissory note referred to a note and draft were received by plaintiff's assignor, the payee

of the first note, which last note and the draft, it is alleged in the complaint, "were forwarded to plaintiff's assignor to satisfy and liquidate the note sued upon herein." A further allegation followed showing that attempts had been made to collect the second note and draft, which attempts were unsuccessful; and it was alleged that the second note and draft were valueless and that the corporation maker was insolvent. The answer admitted all of the facts alleged, except it contained a denial of nonpayment of the note sued upon, and alleged affirmatively that the same had been wholly paid and satisfied. The court made its findings sustaining the defense of payment. The findings were sufficient in form and substance to support the judgment which followed. The bill of exceptions contains a copy of an affidavit made by a representative of the payee corporation. It appears to have been stipulated that this affidavit might be used as evidence in the case. The affidavit contains a narrative of the transactions had regarding the making of the several instruments referred to. There appears to have been no other evidence offered on behalf of either party at the trial. As the findings of fact made by the court were sufficient to support the judgment, no further point is presented which can be determined by an examination of the judgment-roll.

The chief contention of appellant refers to the matter of the insufficiency of the evidence to sustain the findings. The bill of exceptions contains no assignment of error, either in general or particular terms. Upon this state of the record, counsel for respondent insist that no point as to the sufficiency of the evidence to sustain the decision can be here considered, and with this contention we must agree. Section 648 of the Code of Civil Procedure provides that "when the exception is to the verdict or decision, upon the ground of the insufficiency of the evidence to justify it, the objection must specify the particulars in which such evidence is alleged to be insufficient. . . .' ." In Swift v. Occidental Min. etc. Co., 141 Cal. 161, [74 Pac. 700], it is said: "The substance of all these decisions is, that the object of the rule requiring these specifications is first to shorten the statement of the evidence by excluding everything irrelevant to the specified fact; and, second, to notify the opposing party of the particular finding called in question, in order that he may see that the statement fairly and fully presents the evidence bearing upon that

particular matter." It has been repeatedly held that in the absence of any specification pointing out wherein the evidence is insufficient to sustain the decision, no review can be had on appeal of that particular matter. (Hawley v. Harrington, 152 Cal. 188, [92 Pac. 177]; Meek v. Southern California Ry. Co., 7 Cal. App. 606, [95 Pac. 166]; Millar v. Millar, 175 Cal. 797, [L. R. A. 1918B, 415, 167 Pac. 394].)

For lack of error shown by the record it follows that the judgment should be affirmed.

The judgment is affirmed.

Conrey, P. J., and Works, J., pro tem., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on March 8, 1918, and 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 April 4, 1918.

[Civ. No. 2180. First Appellate District.-February 6, 1918.] EMILE FONTAINE et al., Respondents, v. SIMEON LACASSIE et al., Appellants.

CONTRACT-FURNISHING MONEY FOR BUILDING OF HOUSE-HOME FOR CONTRIBUTOR-SUBSEQUENT EJECTMENT-RECOVERY OF MONEY-ACTION FOR MONEY HAD AND RECEIVED.-Where a mother-in-law furnished money to her daughter-in-law to build a house on the latter's property under an agreement between them that the former might occupy the house during her life, with the proviso that if the land was sold before her death by the latter she would repay to the former the money furnished by her for the building of the house, and the mother-in-law shortly after the completion of the house was ejected therefrom by her daughter-in-law, the former has the right to rescind the contract, and recover the entire amount paid in an action for money had and received.

ID. RESCISSION OF ENTIRE CONTRACT-PARTIAL FAILURE OF CONSIDERATION. Where the contract is entire and the consideration has partially failed by reason of the default of one of the parties, the contract may be rescinded by the other party, who may recover the money which he has paid thereunder.

APPEAL from a judgment of the Superior Court of Contra Costa County. A. B. McKenzie, Judge.

The facts are stated in the opinion of the court.

W. S. Tinning, and A. B. Tinning, for Appellants.
George C. Thrasher, for Respondents.

BEASLY, J., pro tem.-Catherine Fontaine, one of the above-named plaintiffs, is the mother of the defendant Simeon Lacassie, and the latter's codefendant is his wife, who owns a piece of land at Walnut Creek in Contra Costa County. In the month of December, 1914, Mrs. Fontaine, who was then unmarried, furnished to Mrs. Lacassie the sum of $439.50 with which to build a house on said property, as the trial court found, under an agreement between them that Catherine Fontaine might occupy the said house during her life, with the proviso that if the land was sold before her death by Mrs. Lacassie she would repay to her mother-in-law the money furnished by her for the building of the house. It is further found that Mrs. Lacassie was to attend to expending the money in erecting the house, and that she did so, paying the bills with the money so furnished by Mrs. Fontaine. The building was complete on January 1, 1915, and the plaintiffs occupied it thence until the month of December following, when the defendants ordered them off the premises with threatening and violent language and, as the evidence discloses, had Mrs. Fontaine arrested and removed from the property on a charge of insanity. She never returned to the house thereafter. The court also found that the object of the agreement to build the house was to furnish a home for Mrs. Fontaine. The defendants on this appeal insist that this finding has no support in the evidence, but the whole tenor of the testimony supports it; and it also specifically appears that when the money was advanced to Mrs. Lacassie by her mother-in-law the latter had become too infirm to work in the laundry where she had been employed, that the defendants were to charge her no rent, and were to furnish her with wood, water, and milk free of charge. From this and indeed from the entire evidence-it may be fairly inferred that the agreement itself under which the