Lindsay v. Mack — 15 Cal. App. 2d 681

Majority

p. 681

[Civ. No. 1950.

Fourth Appellate District.

July 29, 1936.]

CHARLES W. LINDSAY et al., Appellants, v. J. A. MACK et al., Respondents.

Hamilton, Lindley & Higgins for Appellants.

Charles A. Brinkley and Ed. P. Sample for Respondents.

This ease was before us on a former appeal. (Lindsay v. Mack, 5 Cal. App. (2d) 491 [ 43 Pac. (2d) 350 ], which see for. the facts and law of the case.) It was there reversed with directions to make findings on certain issues. In that case it was said:

“Evidence was presented by both parties on this issue but the trial court failed to find upon it.”

The issue here mentioned is the same as that set forth in the directions to the trial court on which to make findings of fact and conclusions of law. Thus it is established as the law of the case that there was sufficient evidence in the record for the trial court to find either for the plaintiff or for the defendant on this issue. The lower court, pursuant to the remittitur in the former appeal, (1) amended the conclusions of law in accordance with the views expressed in the opinion in the former appeal; (2)

p. 682

found that the defendant was released from the obligation created by his agreement of July 21, 1930, and from all damages resulting from its breach by him by an independent oral agreement not contained in the contract of November 27, 1932, and that such oral agreement formed part of the consideration given for the quitclaim deed dated November 28, 1932; (3) made conclusions of law thereon that the defendant was entitled to judgment; and, (4) made and entered judgment in accordance with such amended findings of fact and conclusions of law.

The trial court having carried out the directions in the remittitur in the former appeal on the record before it, and before this court in the former appeal, and on the law of the ease as there laid down, it remains for us but to affirm the judgment.

Judgment affirmed.

Barnard, P. J., and Jennings, J., concurred.