¶1— I concur in the order dismissing the appeal from the judgment. I also concur in the order reversing the order denying the motion for a new trial, on the ground that the findings are uncertain and conflicting.
¶2The contract attached to the note does not, in express terms, declare that the considerations therein named are all (lie considerations for the three-thousand-dollar note, and I think that, under the decision of this court in Billings v. Everett, 52 Cal. 661, the court did not err in its ruling. The matter referred to was expressly alleged as *196a separate defense in the answer, no motion to strike out, or demurrer, was filed, and it was treated at the trial as properly in issue. The plaintiff was himself the first to introduce oral testimony on that issue.
¶3Rehearing denied.