The title was found good. Before the expiration of the 20 days fixed for the payment of the $1,000 an extension of the time of such payment for 15 days was mutually agreed upon between the plaintiffs and Sinclair. Sinclair made default in all the payments. Subsequent to such default he sought to make other and different terms with plaintiffs, but they having learned that his financial standing was bad, refused to make any other or further terms with him, and in April, 1891, he, the said Sinclair, went into voluntary insolvency, and the $500 note so given by him to Blaney became worthless. Plaintiffs, soon after the failure of Sinclair to consummate his agreement, sold the property in question to a third party for $16,000.

Neither plaintiffs nor Sinclair made any tender of performance of the contract; that is to say, Sinclair did not tender payment, and plaintiffs did not tender a deed or offer to do so, but said contract was abandoned by plaintiffs and Sinclair.

The $500 so acknowledged as having been paid is the identical sum of money averred to have been converted to his own use by defendant, and to recover which this action is brought.

Plaintiffs demanded from defendant said sum of $500 before suit brought, which he refused to pay.

The court found also that plaintiffs did not suffer any damage or injury by reason of the failure of Sinclair to complete his contract, or by reason of Blaney taking said note of Sinclair instead of coin, or by reason of said Blaney's asserting at the time of the approval by plaintiffs of said contract that he had received $500 in coin.

At the trial the court permitted the defendant, against the objection of plaintiffs, to contradict the written contract and his declaration to plaintiffs that he had received upon the agreement for a sale the sum of $500 cash, and to testify that he did not in fact receive any money from the purchaser, etc.

This ruling is assigned as error.

Several errors are

also predicated upon the insufficiency of the evidence in support of various findings, as well as error of law in the decision of the court, contained in the conclusion of law, that the defendant was entitled to a judgment.

These alleged errors all proceed upon the theory that the defendant was estopped by the contract of sale, and by his declaration from denying that he had in fact received the sum of $500 on account of the said sale, and they may be considered together.

Subdivision 3 of section 1962 of the Code of Civil Procedure, among conclusive presumptions, declares that: "Whenever a party has, by his own declaration, act, or admission, intentionally and deliberately led another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act, or omission, be permitted to falsify it."

Bigelow, in his work on Estoppel, fourth edition, at page 552, in discussing the elements essential to an estoppel in pais, by conduct, lays down the following rule: "1. There must have been a false representation or a concealment of material facts; 2. The representation must have been made with knowledge, actual or virtual, of the facts; 3. The party to whom it was made must have been ignorant, actually and permissibly, of the truth of the matter; 4. It must have been made with the intention, actual or virtual, that the other party should act upon it; 5. The other party must have been induced to act upon it." (Pickard v. Sears, 6 Ad. & E. 469; Stephens v. Baird, 9 Cow. 274; Welland Canal Co. v. Hathaway, 8 Wend. 480; 24 Am. Dec. 51; Dezell v. Odell, 3 Hill, 216; 38 Am. Dec. 628; Dresbach v. Minnis, 45 Cal. 223; Bleven v. Freer, 10 Cal. 172; Martin v. Zellerbach, 38 Cal. 300; 99 Am. Dec. 365; Wright's Appeal, 99 Pa. St. 425.)

The facts of this case bring it squarely within the rule as above enunciated.

Defendant Blaney virtually admitted, and the court found, that he falsely represented to plaintiffs that he

had received $500 as a deposit on account of the sale, when he had taken what proved to be a worthless note.

He had full knowledge of the falsity of the statement. Plaintiffs were ignorant of the facts, and, relying upon the statement as true, were induced thereby to approve the contract precisely as defendant intended they should do.

Under such circumstances defendant was, and is, in morals, law and equity, bound to make good his statement, and estopped, independent of all considerations of agency, from showing its falsity to the injury of plaintiffs. The late case of Myers v. Byars, 99 Ala. 484, is in point.

Briefly stated, the facts were, in an action to recover $1,000 for money had and received, it appeared that one Landrum had sued a lottery company to recover a prize of $5,000, and plaintiff had intervened in the action, claiming as against Landrum a part of the prize.

Defendant, who was the attorney of Landrum, agreed that in case plaintiff would withdraw his intervention he would hold $1,000 of the prize money to be collected, subject to a contest between plaintiff and Landrum in the courts, and to be paid to plaintiff in the event of his recovery.

When plaintiff brought the action it was held that defendant was estopped to deny the fact that he had the money which had been paid over to him.

Like considerations apply here, and defendant should not have been permitted to deny his former statement that he had received and held the $500.

Respondent contends, however, that conceding all this, still the plaintiffs were not entitled to recover for the reason that the contract of sale was rescinded, and defendant, being required by the written contract to hold the money until the title was found good, became and was upon the abandonment of the contract the agent of Sinclair, the vendee, and liable to him therefor.

We think this contention cannot be sustained. The evidence and findings alike show that defendant was employed by plaintiff to sell the land. As their

agent he contracted for the sale and its terms, as is shown by the written agreement. It was for them, and as their agent, that he professed to have received the $500, and to have acknowledged its receipt from Sinclair.

Concede that by the terms of the agreement he was to hold the deposit until the title was found good, or even until the payment of $4,500 fell due.

All of those things had transpired long before the written demand upon him in evidence made August 10, 1891, or the later demand of the plaintiffs admitted at the trial to have been made upon him November 2, 1891. Defendant owed no duty to Sinclair. If the contract was abandoned and the latter was entitled to recover back his deposit, less the damage plaintiffs had sustained by reason of its breach, it was against the plaintiffs that he was entitled to recover, and not against their agent, the defendant.

Whether or not Sinclair was entitled to recover from the plaintiffs, and if yea, how much, or whether or not the plaintiffs were gainers or losers by the transaction, were questions that did not concern him. (Bogart v. Crosby, 80 Cal. 195, and cases there cited.)

In Phelps v. Brown, 95 Cal. 572, the recovery was had upon the ground that the defendants were in fact the agents of the plaintiff, who was a vendee, and who had made default.

The judgment and order appealed from should be reversed and a new trial ordered.

VANCLIEF, C., and BELCHER, C., concurred.

For the reasons given in the foregoing opinion the judg ment and order appealed from are reversed and a new trial ordered.

GAROUTTE, J., VAN FLEET, J., HARRISON, J.

Hearing in Bank denied.

BEATTY, C. J., dissented from the order denying a hear

ing in Bank.

[No. 15453. Department One.-May 24, 1895.]

FRANK P. ADAMS, RESPONDENT, v. LOUIS HELBING, APPELLANT.

NEW TRIAL-DECISION AGAINST LAW-FAILURE TO FIND UPON MATERIAL ISSUE-REVIEW UPON APPEAL.-When the court rendering judgment fails to find upon a material issue, the decision is against law, and may be reviewed upon appeal from an order granting or refusing a new trial.

ID. OMISSION TO FIND UPON ISSUE RENDERED IMMATERIAL.-Where the complaint sets forth two or more grounds for relief, either of which is sufficient to support a judgment in favor of the plaintiff, a finding upon one of such issues is sufficient to sustain a judgment, and a failure to find upon the other issue does not render the decision against law, and is not ground for a new trial. ID.-FORCIBLE ENTRY AND DETAINER-SUFFICIENCY

OF FINDING.— Where a complaint charges both a forcible entry and a forcible detainer a finding that the plaintiff was the owner and in possession of the property should be construed to import that he was in the actual and peaceable possession thereof at the time when he was forcibly removed therefrom, and that he was entitled to the possession at the time of the forcible detainer; and the finding being sufficient to support a judgment for forcible detainer, it is immaterial whether it is sufficient to support a judgment upon the ground of forcible entry. ID.-REVIEW OF EVIDENCE-INSUFFICIENT SPECIFICATIONS.-Specifica tions of the insufficiency of the evidence which are merely brief statements of what the evidence shows are insufficient.

ID.-SURPLUSAGE-STATEMENT OF WHAT EVIDENCE SHOWS.-It is not necessary that a specification in a statement on motion for a new trial should state what the evidence does show, and such a statement is insufficient if standing alone, and surplusage if joined to a proper specification.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order deny. ing a new trial.

The facts are stated in the opinion.

Thomas E. Curran, for Appellant.

There is no finding as to the actual and peaceable possession of the building alleged to have been forcibly entered, and such finding is essential. (Castro v. Tewksbury, 69 Cal. 562; Treat v. Stuart, 5 Cal. 113; House v. Keiser, 8 Cal. 501; McCauley v. Weller, 12 Cal. 524; Giddings v. '76 Land & Water Co., 83 Cal. 100; Cummings v. Scott, 23 Cal. 527; Barlow v. Burns, 40 Cal. 351; Conroy