on petition for rehearing.
The conclusions announced in our opinion before filed were not adopted without an anxious and thorough investigation of the case presented by the record. There are, however, some portions of the opinion referred to in the petition for rehearing that require further explanation, and, perhaps, ought not to be applied to this case; and some new points presented that we do not feel at liberty to pass over without notice.
It is first insisted that in respect to the points wherein the *311evidence was held to be insufficient to sustain the findings, the Court applied a different rule from that followed in OWen v. Morton, 24 Cal. 376. In that case it was said, substantially, that where the record fails to negative the fact, that there was" other proof upon the point in question, when it appears that there was other evidence in the case, the finding of the Court below would be presumed to have been supported by the evidence omitted. The portion complained of as being inconsistent with the rule thus stated, is the last paragraph of the following passage: “The statement on motion for a new trial designates the grounds of the motion, and as required by section one hundred ninety-five of the Practice Act, specifies certain particulars in respect to which the appellant would claim the findings to be unsupported by the evidence, all of which relate to questions affecting the state of the accounts between the parties. The statute requires the testimony in the statement to be confined to those particulars. If any testimony in favor of plaintiff bearing upon the points specified ivas omitted by defendant it ivas the duty of plaintiff's counsel to see that it was supplied by amendments." This was said arguendo in discussing a point decided by us in favor of the respondent, but it turns out to be applicable to other points decided against him. .Neither the case of Owen v. Morton, nor any other upon this point, was called to our attention by counsel. Upon examination of the case, however, it is evident that the propositions announced in the two cases are inconsistent, and it becomes necessary to determine which is right, and to establish the rule upon the point by which we shall in all cases hereafter be governed. In the case of Owen v. Morton, the point was not made or discussed by counsel, and we followed, without questioning its correctness, the rule as announced in Dawley v. Hovious, 23 Cal. 104, and in some previous decisions, also, apparently adopted without discussion. And we may have followed the same rule in subsequent cases. But since the decision in Owen v. Morton, and since the submission of this cause, the question has been fully discussed by counsel in another case, in which it is claimed that, if the *312rule ever was correct under the provisions of our Practice Act, it ought not to be applied to statements prepared under the very specific provisions of section one hundred ninety-five as it now stands. And, after a careful examination of the question, we are satisfied that the rule as announced in the opinion in this case harmonizes with the general theory of the other provisions of the section as construed by us, and is the proper rule to be adopted. The section provides that, “When the notice designates as the ground upon which the motion will be made, the insufficiency of the evidence to justify the verdict, or other decision, the statement shall specify the particulars in which such evidence is alleged to be insufficient.” * * * “The statement shall contain so much of the evidence or reference thereto as may be necessary to explain the particular points thus specified and no more.” The point wherein the defect of evidence is claimed to exist must, then, be specified, and so much of the evidence as is necessary to explain it must be introduced, and no more. The attention of the other party is thus directed to the weak point in his evidence, and if anything has been omitted which would tend to strengthen his.case on that point, he has an opportunity afforded to supply it by amendment, and it is his duty to do so. And, in practice, we have no doubt that this is in all cases done. It is for this purpose, in part, that a party is authorized to have a defective or erroneous statement settled by the Judge. When the statement has been filed, and the opposite party has had an opportunity to suggest the necessary amendments, and the statement has been thereupon agreed to, or settled by the Judge, we think be must be regarded as being estopped from averring that there may be other testimony upon the point. As to all other points not specified in the statement the presumption would be that the evidence sustains the verdict, and no question can be made upon it. .This view is sustained by the principles announced in the decision of Ringgold v. Haven, 1 Cal. 116. After stating instances in which the presumptions as to the sufficiency of the evidence would be in favor of the correct ruling of the *313Court, Mr. Justice Bennett says: “ But it is not properly applicable to what is denominated a case, the very scope and object of which is to bring up the entire testimony and proceedings which may be deemed of importance to either party.” The “ case” referred to here we understand to be just such a case as is contemplated by our present statutes, denominated a “ statement,” or something analogous to it, and governed by the same principles. (See Grab. Pr. 290.) Without any expressed intention to overrule this decision, there seems to have been a subsequent, though perhaps inconsiderate departure from it. At all events, we think the rule as now stated by us should be applied to statements hereafter prepared under the Act as it* now stands. When the rule is once understood, to require a certificate that the record contains all the evidence introduced on each point specified would only be to add so much useless matter. We shall, therefore, follow this rule in all cases where the statements are prepared after the publication of this opinion.
The statement in this case was made up since the decision in Owen v. Morton, and the parties may have relied upon that case and the others referred to. We should for this reason feel bound to grant a rehearing, if we deemed it necessary to determine the cause upon the question as to the sufficiency of the evidence to support the findings. But in our opinion it is not, as will be seen hereafter.
“Another question,” says the petition, “which has not attracted the attention of the Court is this : Can Jordan, without express contract in writing, collect more than ten per cent per annum upon his four thousand dollars ?” The question was not noticed by the Court because no such point was made by counsel. “Every question of law,” says counsel, “was decided in the Court below as this Court decides it, and the computation made in the same way.” Tet we hear no complaint as to the rate of interest allowed in the computation, either in the Court below or in this Court, until it is made in the petition for rehearing, after a decision against the respon*314dent upon the points raised and discussed. We should not deem it necessary to refer to this point at all, raised as it is, for the first time, at this stage of the proceedings, were it not for the fact that the case goes back for a re-accounting, and the question may be made again on the further proceedings in the Court below. We shall also notice some other matters that we should not have thought it necessary to discuss had there been nothing else in the petition requiring further observation.
This is not a suit by Jordan to “collect” either principal or interest. It is a suit in equity by Hidden against Jordan to establish a contract, and then enforce it. The complaint was filed in November, 185S. It alleges substantially that plaintiff purchased certain tracts of land from third parties; that he borrowed from Jordan four thousand dollars with which to make payment in part; that he agreed to pay interest thereon monthly, at two and a half per cent per month, and if the interest should not be paid to pay interest on each instalment thereof from the time it should fall due, at two per cent per month, and to give his notes' therefor; that it was agreed between him and Jordan that the lands purchased should be conveyed by the vendor to Jordan, and that Jordan should hold the title in trust for the plaintiff, and to secure the amount loaned and interest, and upon payment thereof according to the terms of the. agreement to convey to plaintiff; that the purchase was made, the money advanced, and the lands conveyed to Jordan in pursuance of this agreement, without the same having been reduced to writing; that afterward the plaintiff caused a contract to be drawn up in writing (a copy of which—Exhibit “B”—is attached to and made a part of the complaint) and presented to defendant for execution ; that defendant suggested certain amendments of which he made a memorandum in writing (which is also annexed as Exhibit “ C,” and made a part of the complaint,) and directed them to be incorporated into the said draft of agreement, and that he approved of and agreed to the terms of the agreement as thus amended; and said defendant then and there agreed to sign, *315execute and deliver to said plaintiff the instrument thus completed; that he subsequently refused to execute the agreement as amended, and denied the contract altogether, at the same time claiming that he had purchased the land on his own account. Plaintiff prays that the conveyance to defendant may be adjudged to be a mortgage to secure the payment of said four thousand dollars “ in accordance with the agreements contained in Exhibit ‘B’ and ‘C;’” “that said defendant be decreed to enter into, execute, acknoivledge and deliver to plains tiff Ids agreement in terms as expressed in said exhibit,” and for general relief. In 1859, a supplemental complaint was filed in which plaintiff alleges, that since the commencement of the action, he has tendered to defendant the full amount due upon said contract for principal and interest, and demanded a conveyance in pursuance of said agreement, and that defendant refused to accept the money, or make the conveyance. He then asks to be permitted to pay the money into Court; that an account may be taken, and the amount due ascertained, and that defendant be decreed to convey in accordance with the terms of said contract. In 1863 plaintiff filed a second supplemental complaint in which he alleges that defendant entered into possession of the premises in 1858, in the manner stated in the original complaint, and that he has been in possession and .taken the rents and profits ever since, and in so doing has made himself plaintiff’s trustee for the same, and that he is bound to account for the proceeds, etc., and prays, among other things, that defendant be required to account for the same, “ and for such other and further relief in addition to that prayed for in this and his former complaints as to the Court may seem just and proper.” Upon issues joined, the Court found the contract to be as alleged, including the rate of interest, but found against the tender of the full amount due, and made the accounting upon that basis. How this is the very contract which plaintiff alleges, and which he asks this Court to enforce according to its terms. He sets out the very contract in hcec verba drawn up in writing which, he says, was entered into and finally approved, and substantially asks, *316firstly, that it be established; secondly, that “ defendant be decreed ' to enter into, execute, acknowledge and deliver to plaintiff his agreement in terms as expressed in said exhibits;” and lastly, after it shall be established and actually executed and delivered, that it be carried into execution by taking an account between the parties and decreeing a conveyance of the land, upon its appearing that the amount due has been paid. He has had the contract set up, established, and the trust arising under it enforced according to the terms alleged, and according to the prayer of the complaint. Can the plaintiff complain that his relief has been meted out to him by the standard which he himself has set up as the measure of his right ? We think not. Should the contract in writing in fact be first executed under a decree of the Court, as prayed in the complaint—and on this point, for the purpose of the relief granted, the Court will consider that as done which ought to be' done—the question now raised could not arise, for there would then be a contract in writing for interest at the prescribed rate to be enforced. We think upon the case presented by the record that interest should be allowed in the accounting at the rate agreed upon in the contract sought to be enforced, according to its terms. Had this been a suit at law by Jordan upon the paroi agreement to recover the money due, the question would have been a very different one.
Another point made in the petition for the first time is the Statute of Limitations. It is sufficient on this point to say, without further discussion, that the record presents no case for the application of the bar of the statute.
In considering the question as to whether the amended and more specific findings of the District Court are in harmony with its general finding upon the state of the account between the parties, we assumed, in our opinion, that the District Judge allowed the item of twelve hundred dollars expended in the construction of a stone wall fence on the premises. It is now, for the first time, very positively asserted, that there was “ no alloivance made by the Court on account of the stone tvall to Jordan.” Upon this point there is, on the part of *317counsel, a palpable “ change of base ”—a course of proceedings too frequent in petitions for rehearing. In the brief filed in the case, respondent’s counsel complained because it ivas allowed, and on the ground that there was no testimony to show “ that it was necessary to the preservation of the estate or the crops, and without such proof the Court ought not to allow anything;” that “a trustee has no right to put improvements upon an estate, unless they are necessary to its preservation or to save the crops;” that the stone wall wTas an evident attempt to “improve the plaintiff out of the property.” He also complained that, according to the evidence, the estimate adopted by the Court of the length of the wall was too great, and the price too high, and then adds: “ Yet the Court allowed one thousand two hundred dollars for the wall—one hundred and twenty dollars more than the highest value of the wall—although about eighty rods of it' ivas inside the line, causing a loss of a strip of land ten to fifteen feet wide,” etc.; and again: “The allowance for the stone wall, one thousand tivo hundred dollars, and one half of the proceeds for eighteen hundred and fifty-nine, tlwee thousand seven hundred and thirty-one dollars, making foivr thousand nine hundred and thirty-one dollars, was a clear gift to the defendant, to which he was not entitled.” When counsel make in their printed arguments a formal admission of a fact, or a principle of law which bears against themselves, it cannot be expected that this Court will be very particular in ascertaining whether the admission is correct or not, and counsel, upon reflection, cannot well fail to perceive that to make such an admission, and then, after the Court has acted upo.n it as correct, without offering any sort of excuse for such action, apply for rehearing upon the ground that the decision is based upon an erroneous hypothesis, is— whether intended or not—but trifling with the Court. In this case, although the finding does not state in express terms that the item for the wall was allowed, yet we think the plain inference from the record is, that it was; and we cannot suppose that respondent’s counsel would have made such strenuous efforts in his briefs to show that it was improperly allowed, *318or if not, that it was allowed at too great a sum, unless it had been understood by all parties that it was in fact allowed. It is still insisted in the petition, that, if allowed, it was erroneously done, for the reason, that there is no finding, and no evidence in the record to support such a finding, that the wall was necessary for the protection of the crops. There is no express finding on that point one way or the other, and, as there is no exception for defect in that particular, the item having been allowed, the presumption is, under the statute of 1861, in favor of its correct allowance; and as no point is specified in the statement as to the sufficiency of the evidence to sustain a finding that the wall was necessary, we could not expect to find any evidence on the point in a statement properly prepared. The statute expressly forbids its introduction. These very principles were invoked by respondent upon other points made against him in this case, and enforced in his favor in our former opinion. Respondent certainly cannot expect us to apply one rule to his points, and another to the appellant’s. We have admitted that, in view of the former action of the Court, we may have done the respondent injustice by applying to the statement the rule announced in this case, as to the sufficiency of the evidence to sustain certain findings, and, for this reason, we lay the sufficiency of the evidence out of the case, and it will be unnecessary to discuss it further. Our former opinion will also be modified by omitting that portion relating to the sufficiency of the evidence to sustain the findings.
This brings us to the question, whether the amended and specific findings are in harmony with the original and more general finding—the point upon which the decision was mainly rested before. Upon this branch of the case but one or two points besides those already noticed are made in the petition. It is claimed that, because a balance of twelve hundred and fifty-eight dollars and eighty-six cents interest was found to be due January 4th, 1859, in striking this balance, the Court must have included the item of ninety-six dollars and thirty-nine cents, taxes paid prior to that date, viz; November 1st, *3191858. But we do not so understand the record. This tax was evidently regarded as an independent item, as no reference is made to any other item or payment allowed prior to that date. The finding simply gives us the balance of interest unpaid then ascertained, without any reference to the preceding state of the account. And this item of taxes is included in the finding with the several other items of taxes allowed, which were paid subsequent to the striking of the balance, in the gross sum of six hundred and five dollars and sixty-four cents, and it is only by reference to the admitted facts upon which the finding is based, that we ascertain the dates at which the several items of taxes which make up the gross amount were paid. We have no doubt, from the record, that this item was allowed to defendant' in the computation, in addition to the balance of interest. Taxes paid are a part of the expenses of the year in which they are paid. To ascertain the net profits of the year, the taxes paid are properly deducted from the gross proceeds. This is simply what was done in our computation. For the purpose of the computation, we took the month of November, because that appeared to be the end of the year—the period ordinarily adopted for making rests in such cases—and the 4th, instead of the 1st, for the convenience of round numbers, this being sufficiently accurate for the purpose of our argument. But, taking October 1st— the precise time for making the rests adopted by respondent in his computation—and allowing interest at the agreed rate, it is not pretended, as we understand counsel, that the special findings can be made to harmonize with the general finding, or that upon the special findings the whole amount due has been paid by the rents and profits, unless we throw out of the account the first item of taxes and the item of one thousand two hundred dollars allowed for the wall. But these items, as we have shown, cannot be disregarded upon the case as now presented by the record. We cannot, of course, tell how the case may appear after the new accounting. But even if the one thousand two hundred dollars allowed for the wall be rejected, and the 1st of October taken as the time for making *320the rests, there would -still be a balance due defendant, if we are not mistaken in our computation. We do not understand that the accuracy of our computation is questioned, provided the first item of taxes be allowed, and deducted from the gross proceeds of the year, and the agreed rate of interest be adopted.
The specific findings must control; and, after a thorough examination of thé case, we do not see how those findings can be made to support the judgment. The respondent’s counsel insists, with no little warmth, that his client has been grievously wronged, and that a large balance ought in fact to have been found in his favor, but much that is said is based upon matter outside the record. If he is correct, upon a re-accounting he will doubtless be able to show it, and to recover the large balance due him. At all events, we are unable to find anything in the record, or the argument based on it, that would justify a rehearing.
Rehearing denied.
Mr. Justice Currey expressed no opinion.