There is nothing in the contention of appellants that because the last agreement expressly makes the first a part of it, the reimbursement to plaintiff must still be made by a selection of lots by her. This portion of the first agreement is superseded by the agreement in the last to sell the lots and pay the money.

With

There was no material issue raised by the answer. No allegation of fact necessary to the statement of plaintiff's cause of action is denied by the answer of defendants. All of the denials are of conclusions of law, except the denial that the seven original contracts were executed by the Merchants' Trust Company on behalf of the other defendants, which was rendered unimportant and immaterial by the later contracts, and the denial that these contracts had been canceled. respect to the latter, the complaint having alleged that plaintiff surrendered them up in accordance with the agreement, it was not material to her right to recover that the defendants failed to cancel them as they agreed to. Neither do the matters set up by way of further answer affect her right. The necessity for the plaintiff to make her selection of lots under the first agreement was removed and passed from consideration when the second instrument was executed. It was equally immaterial whether the Merchants' Trust Company accepted the trust under the last instrument. The company was not a party to that instrument, and no additional burden was placed upon it thereby, if it did not assent to its provisions, but, as trustee for the benefit of plaintiff and defendants, and to secure plaintiff her interests in the lots as determined by the parties in interest, the trust company could have made the conveyances necessary to carry out the last agreement without additional authorization.

The relief which a court of equity may grant in such a case as this is to be determined by the respective rights of the real parties in interest as found and adjudicated by the court, and is not affected by the fact that the title to the property which is given as security is held by a trustee. (Bell v. Staacke, 141 Cal. 186, 202, [74 Pac. 774].) Under the allegations of the complaint the Merchants' Trust Company held the title to the lots in question in trust to secure to plaintiff the repayment of the $1,000. The debt secured was not paid in accordance with the contract, and no power

of sale for this purpose having been given to the trustee, we see no reason upon which to sustain appellants' contention that the court could not foreclose the lien or trust for the purpose of applying the proceeds of sale upon the indebtedness. To accept appellants' view would be to declare that defendants, by failing to carry out their agreement, could deprive plaintiff of the benefit of her security, which would be contrary to all conscience and equity.

Judgment affirmed.

Allen, P. J., and Shaw, J., concurred.

INDEX.

ABDUCTIONS. See Criminal Law, 19–23.

ACCOUNT STATED. See Corporations, 13, 14.

AFFIDAVIT OF MERITS. See Place of Trial, 15.

AGENCY. See Brokers; Promissory Notes, 2, 6; Sales, 10, 11.

APPEAL

-

1. NONSUIT-REVIEW UPON APPEAL-EXCEPTION TO RULING STATE
MENT-BILL OF EXCEPTIONS.-It is the settled law of this state that
improper granting of a nonsuit is an error of law, and that prior
to the amendment to section 647 of the Code of Civil Procedure, in
1909 (Laws 1909, p. 586), could be reviewed upon appeal only where
an exception was entered at the time of the ruling, and the same
was specified in the motion as a ground for new trial, or was em-
bodied in a bill of exceptions to be used upon appeal from the judg-
ment, showing that such exception was taken when the order was
made. (Smith v. Hyer, 597.)

2. ORDER GRANTING NEW TRIAL-GENERAL RULING-SUPPORT ON ANY
GROUND ASSIGNED.-Where an order granting a new trial is general,
though it cannot be sustained on a ground of nonsuit which was
not excepted to, yet it will be sustained upon appeal if it is good on
any ground assigned. (Id.)

8. GROUND OF NEWLY DISCOVERED EVIDENCE-DISCRETION OF TRIAL
COURT.-An order granting a new trial based on the ground of
newly discovered evidence is addressed to the discretion of the trial
court, and its determination will not be interfered with if no clear
abuse of discretion appears. (Id.)

4. CONSIDERATION OF CUMULATIVE EVIDENCE.-The determination of the
effect of newly discovered evidence which is cumulative is peculiarly
within the province of the trial court, and if, in its opinion, the
newly discovered evidence was such as, had it been considered in the
first instance, would have changed the result, it was the duty of
the court to grant a new trial, and the granting of it amounts to
a declaration that the new evidence would have had that effect had
the same been actually produced upon the original hearing. (Id.)
5. MOTION TO DISMISS-FAILURE TO FILE TRANSCRIPT IN TIME-
REASONABLE EXCUSE FOR DELAY.—A motion to dismiss an appeal

APPEAL (Continued).

for failure to file the transcript in time will not be granted where a reasonable excuse is shown for the delay in the preparation of the transcript, so that it was not in a suitable condition to be served and filed within the time prescribed by rule 2. (Continental Build

ing etc. Assn. v. Woolff, 677.)

6. APPLICATION OF RULE 5 PRIOR SERVICE OF TRANSCRIPT SUBSE QUENT FILING EXCUSED.-Where it appears that the transcript was served prior to the motion to dismiss, and if the clerk of the appellate court had been in his office when it was presented for filing it would have been filed prior to the motion to dismiss, which would have been a complete answer to the motion, under rule 5, and where the circumstances connected with the filing, in the absence of the clerk from his office, show a reasonable excuse for delay in filing the transcript until shortly after the filing of the motion to dismiss, rule 5 will still be applied. (Id.)

7. EQUITABLE CONSTRUCTION OF RULE 5.-By an equitable construction of rule 5, with reference to the circumstances of this case, appellants may be relieved of the severe penalty sought to be imposed upon them by the respondents; and it appearing that the transcript was first served prior to the service of the motion with intent to file it on the same day, and that it was so filed, it would do no violence to rule 5 to hold that the transcript was on file at the time of the noticing and filing of the motion to dismiss, within the spirit, if not within the letter, of rule 5. (Id.)

8. STATUTES AND RULES CONSTRUED LIBERALLY IN FAVOR OF RIGHT OF APPEAL. The right of appeal being conferred by the constitution, statutes and rules of procedure should be construed liberally in favor of the exercise of such right. (Id.)

EN

9. CIRCUMSTANCES TO BE CONSIDERED IN DETERMINING REMEDY GAGEMENTS OF COUNSEL.-Though the necessary engagements of counsel for appellants in other causes is not of itself an excuse for delay in exercising the remedy by appeal; yet it is a circumstance to be considered in connection with facts and circumstances shown in determining the existence or loss of the remedy by appeal. (Id.) 10. APPEAL TO DISTRICT COURTS OF APPEAL-REASONABLE DISCRETION— HEARING ON MERITS.-Where appeals are taken directly to the district courts of appeal, they are vested with a reasonable discretion in determining questions involving the application of the rules of the court to such an appeal, which should be exercised in favor of a result which is just, and "tends to bring about a hearing on the merits which is always to be desired." (Id.)

11. ACTION TO RESCIND PURCHASE OF Motor Car AND RECOVER PRICE

FALSE REPRESENTATIONS-SUPPORT OF FINDINGS FOR DEFENDANT.— In an action to rescind the purchase of a motor car, and to recover the price paid for alleged false representations, where the court

APPEAL (Continued).

finds that all the material allegations of the complaint are untrue, and that the answer of the defendant is true, the findings and judg ment for the defendant cannot be disturbed upon appeal, where the record discloses evidence which, if believed by the trial court to be true, amply supports its findings. (Knott v. Patnott, 425.) 12. SPECIFICATIONS OF INSUFFICIENCY OF EVIDENCE-PROVINCE AND DUTY OF APPELLATE COURT.-Where the only questions of error presented in the record upon appeal relate to specifications of insufficiency of the evidence to sustain the findings, the appellate court cannot usurp the province of the trial court to determine the weight and effect of the evidence; but its duty is fully discharged when upon examination of the record it finds that the findings of the trial court have some support from competent evidence. (Id.)

13. ALTERNATIVE METHOD - FAILURE TO FILE UNDERTAKING — JURISDICTION. An appeal taken after the passage of the act of 1907 (Stats. 1907, p. 750), though intended to be pursued as matter of form under the old method, which is not repealed, will, nevertheless, give jurisdiction under the new method by the filing of the notice of appeal, though no undertaking on the appeal is filed. (Russell v. Banks, 450.)

14.

REVIEW ON APPEAL FROM JUDGMENT INSUFFICIENCY OF EVIDENCE. When an appeal from the judgment is taken within sixty days after its entry, the insufficiency of the evidence to sustain the findings may be reviewed under a proper bill of exceptions. (Id.)

15. NEW METHODSERVICE OF NOTICE NOT REQUIRED

16.

UNTENABLE

MOTION TO DISMISS.- Where an appeal is taken under the new method prescribed by sections 941a and 941b of the Code of Civil Procedure, as enacted in 1907, the notice of appeal is only required to be filed with the clerk of the trial court, and "need not be served upon any of the parties to the action or proceeding or their representatives or attorneys." This court has jurisdiction of an appeal so taken; and the same cannot be dismissed on motion of the respondent for failure to serve the notice of appeal by a defendant upon a defaulting codefendant. (John Brickell Co. v. Sutro, 460.)

DISMISSAL-FAILURE TO FILE POINTS AND AUTHORITIES IN TIMEABSENCE OF EXCUSE.-An appeal will be dismissed for faiiure to file the points and authorities for appellant within the time allowed therefor, in the absence of any showing which tends to excuse a long-continued default. (Long v. American Surety Co., 94.)

17. REVIEW OF ORDER DENYING NEW TRIAL

BILL OF EXCEPTIONS

PRESUMPTION.—Where it appears from the record on appeal from