¶1I dissent. Although, on its face, this ease may seem in some of its aspects to be a hard one for affirmance, I think that we should either follow the law on the record as it actually exists, or frankly declare that the law is changed. Glock v. Howard (1898), 123 Cal. 1 [55 P. 713, 69 Am.St.Rep. 17, 43 L.R.A. 199], and Henck v. Lake Hemet Water Co. (1937), 9 Cal.2d 136 [69 P.2d 849], contain statements which are inconsistent with the majority opinion; I think that they should be followed or squarely overruled insofar as they are inconsistent.
¶2As to the finding of gross negligence and wilful breach of contract the majority, in the face of substantial evidence, substitute their conclusion of fact for that of the trial court; the majority hold that as a matter of law the use by defendants, in making payments on the time-essence contract on two occasions within three months, of checks drawn on an account without sufficient funds to cover such checks, does not support the specific finding of the trial court that such conduct was either wilful or grossly negligent. If using bad checks two times in three months does not support a finding of wilfulness or gross negligence would three times in three months be sufficient? If not, would 12 times in 12 months perhaps suffice? And, if there be implications of negligence or wilfulness in the conduct related, what excuses shall the trial court be required, as a matter of law, to accept as over-weighing the conflicting implications? How far are we going in the trend toward de novo consideration on appeal of conflicts in evidence?
¶3I would prefer to leave with trial judges and juries the fact finding function which once was exclusively theirs. (For illustration of the trend toward appellate supervision of fact finding on the weight of evidence see Isenberg v. California Employment Stab. Com. (1947), 30 Cal.2d 34, 45-46 [180 P.2d 11]; Union Oil Co. v. Union Sugar Co. (1948), 31 Cal.2d 300, 319 et seq. [188 P.2d 470].)