court made acquainted with its terms and conditions. It is not, however, incorporated in the bill of exceptions, or otherwise brought up in the record; nor is there any evidence touching the terms and provisions thereof. There is evidence as to what the parties did, but the record is wholly silent as to what they were required to do under the terms and provisions of the contract. It is, therefore, impossible for us to say that the evidence was insufficient to show breach of the contract on the part of defendant, or to support the finding that plaintiff and his assignors fully complied with the contract on their part.

The record discloses evidence to the effect that after the work had been prosecuted for some months, during which time the payments, so far as made, appear to have been in accordance with estimates furnished monthly by an engineer, it was agreed to dispense with these estimates and defendant was to make weekly payments sufficient to meet the payrolls of the men employed by the contractors, and at the end of each month make payments in amount sufficient to meet other necessary expenses incurred in the performance of the work and furnishing the materials therefor. It also tends to prove that defendant in making the payments was in arrears practically from the commencement of the work. On September 16, 1907, plaintiff served notice upon defendant to the effect that, owing to his neglect and failure to pay the several amounts as they became due, it would be impossible to further prosecute the work, and unless payment was made he would abandon the work. Notwithstanding this notice, defendant refused to make a payment of $120 required to meet the payroll on September 28, 1907, whereupon plaintiff ceased work.

The court finds that the time for completion of the work as fixed in the contract was extended by the oral agreement. The contract is not before us, and the time fixed therein may have been at a date subsequent to the ceasing of work by plaintiff. There is some evidence tending to prove that the time was extended. Franklin testifies: "There was an absolute promise made by Mr. Schmidt that we were to be granted all the necessary time to complete that work." We cannot say that the expression "that work" did not refer to the whole work to be done under the contract, instead of additional work required in the sloping of embankments. Considering the conditions under which the work was done, it

seems to have been prosecuted with reasonable diligence. There is also evidence tending to show that defendant was in arrears in making payments during the period covered by the months of June, July and August.

In the absence of the written contract or any evidence as to its terms and provisions, we cannot say that the findings complained of are not supported by the evidence.

Furthermore, conceding the finding as to the modification of the contract to be unsupported by the evidence, nevertheless, it became harmless in view of the fact that the court found that defendant failed to comply with the written contract, and that plaintiff and his assignors did comply with it on their part up to September 28th, when, owing to the breach of contract by defendant, they ceased work thereunder. As to the findings in this regard, no objection can be urged that it is not supported by the evidence, for the reason, as herein before stated, the contract was before the trial court and it is not embodied in the record on appeal.

What is here said sufficiently disposes of the contention that defendant's motion for nonsuit should have been granted. There was no error in denying the motion.

A number of assignments of error are predicated upon rulings of the court made in excluding answers to questions put by defendant. The evidence sought to be elicited by these questions all pertained to damages alleged to have resulted from the contractors' failure to complete the work within the time specified in the contract. There is nothing in the record, however, from which it can be determined that the court erred in making such rulings.

Appellant contends that the amended complaint failed to state a cause of action by reason of the fact that it is not alleged that the amount sued for is "due and owing." In view of the fact that the complaint formally and in direct terms alleged nonpayment, no good purpose could be subserved by inserting words constituting a mere legal conclusion, and from the use of which, at most, and then only in the absence of a demurrer, the fact of nonpayment might be implied. (Penrose v. Winter, 135 Cal. 289, [67 Pac. 772].)

The record discloses no prejudicial error, and the judg ment and order appealed from are affirmed.

Allen, P. J., and Taggart, J., concurred.

[Civ. No. 853. Second Appellate District.-May 20, 1910.] T. J. MILES, Petitioner, v. JUSTICE'S COURT OF PASADENA TOWNSHIP, COUNTY OF LOS ANGELES, etc., Respondent.

CRIMINAL LAW-CHANGE OF VENUE IN JUSTICE'S COURT-CONSTRUCTION OF CODE.-Section 1431 of the Penal Code, relating to a change of venue in the justice's court in a criminal case, is not to be given the same effect as section 833 of the Code of Civil Procedure applicable to the civil actions therein.

ID. AFFIDAVIT FOR BIAS AND PREJUDICE-JURISDICTION NOT OUSTED— POWER TO DETERMINE SUFFICIENCY OF REASONS-REMEDY BY APPEAL.-An affidavit for bias and prejudice does not per se oust the jurisdiction of the justice's court in a criminal case, but the court has power to determine the sufficiency of the reasons set forth, and for any error or abuse of discretion in passing thereon, the defendant has a speedy and adequate remedy by appeal.

ID. OFFICE OF WRIT OF REVIEW.-The writ of review can only be granted where the inferior court has exceeded its jurisdiction and there is no appeal. The writ cannot be allowed to control discretion, nor to review mere errors in the exercise of jurisdiction. ID. JURISDICTION NOT EXCEEDED.-The justice of the peace did not exceed its jurisdiction, either in refusing to grant the motion for the change of venue or in proceeding to trial, after denying the same, or in determining the sufficiency of the evidence to support a conviction, or in charging the jury as to the law of the case, and any mere errors committed by the court in the exercise of its jurisdiction can be remedied only upon appeal.

APPLICATION for writ of review to justice's court of Pasadena Township, Los Angeles County.

The facts are stated in the opinion of the court.

Randall & Gaines, for Petitioner.

THE COURT.-It is alleged in the petitioner's affidavit that he was charged with the violation of an ordinance of Los Angeles county, claimed to have been committed in Los Nietos township in said county; that defendant was arrested and taken before a justice of the peace in and for Pasadena township, and his cause set down for trial; that petitioner filed an affidavit and motion for a change of venue on the

ground that the justice of the peace was biased and prejudiced and interested against him, and he could not have a fair and impartial trial before such justice; that expecting said motion to be granted he did not prepare for trial at the time set, which matter being brought to the attention of the justice he refused, notwithstanding the acquiescence on the part of the prosecuting officers, to continue the trial on account of the absence of the witnesses; that objection was made to proceeding further with the trial because it was claimed that the justice had lost jurisdiction by reason of the affidavit, which objection the justice overruled. It is alleged further that upon the trial he was convicted without the introduction of the evidence necessary in order to estab lish the offense, and that the court erred in giving certain instructions to the jury; that at the conclusion of the trial the jury found petitioner guilty; that from the judgment pronounced upon such verdict the petitioner appealed to the superior court of Los Angeles county; that upon the hearing of such appeal the judgment was by the superior court affirmed; and this writ is sought to review and annul the judgment of said justice.

The theory of petitioner is that the same effect should be given to section 1431 of the Penal Code as is given to section 833 of the Code of Civil Procedure, namely, that upon the filing of an affidavit showing bias and prejudice the justice must transfer the cause, and that he is without jurisdiction further to act. In the case of Lowrey v. Hogue, 85 Cal. 602, [24 Pac. 995], a distinction is drawn by our supreme court as between the two sections, and in which it is held that in a criminal action upon the facts stated in the affidavit the court is called upon to determine whether the reasons given support the conclusion, and for any abuse of discretion shown in relation thereto the defendant has a speedy and adequate remedy by an appeal to the superior court. In Ex parte Wright, 119 Cal. 401, [54 Pac. 639], a construction of section 1431 of the Penal Code is given, in which it is said the refusal of the justice to change the place of trial may have been error, and, if so, the prisoner has an ample remedy by appeal, but the justice did not exceed his jurisdiction in proceeding to trial after overruling the motion for a change of venue. This writ of review can only be granted when an inferior tribunal

exercising judicial functions has exceeded its jurisdiction and there is no appeal. From the action of the court, either in passing upon the motion for a change of venue or in determining the sufficiency of the evidence to warrant a conviction, or in charging the jury as to the law of the case, the justice was acting within his jurisdiction, and for errors committed in its exercise this writ will not lie.

Writ denied.

[Civ. No. 820. Second Appellate District.-May 23, 1910.] SAMUEL BAUME, Appellant, v. M. E. MORSE, Respondent.

CONTRACT TO SELL LAND-STATUTE OF FRAUDS-ESSENTIALS TO SPECIFIC PERFORMANCE.-The essentials to an enforceable contract to sell real estate are that it, or a memorandum or note of its terms, shall be in writing, and that such writing shall declare with certainty the party who sells, the party who buys, the price to be paid, and a description of the property sold by which it can be known or identified.

ID. INSUFFICIENT MEMORANDUM-WANT OF PRICE AND DESCRIPTION.— A mere dated receipt by defendant to plaintiff, for "forty dollars deposit on 5 acres of land in Compton. Good till the first of Nov. 1908," is incapable of specific performance, because no price is named therein, and the description given is not sufficient to justify a court of equity in enforcing the conveyance of any property. ID.-ABSENCE OF CAUSE OF ACTION FOR REVISION-CODE SECTION IN APPLICABLE.-Where no cause of action for revision was stated in the complaint, the provision of section 3452 of the Civil Code that "a contract may be first revised and then specifically enforced" is inapplicable.

ID.-MISSING TERMS OF CONTRACT NOT PROVABLE BY PAROL EVIDENCE.— The offer by plaintiff to supply the missing terms of the contract by parol evidence was properly denied by the court.

ID.-WRITTEN TERMS OF AGREEMENT MUST CONTROL.-When an agree ment is reduced to writing, the writing is to be considered as containing all the terms of the contract; and no other evidence of the terms of the agreement will be admitted. No new terms can be introduced into the contract by parol