
    [No. 5184.]
    LEONARD W. KENNEDY and CATHERINE S. KENNEDY,- His Wife, v. GEORGE G. BERRY.
    Enronre ov Facts. — In an action to recover damages for failure to fulfill a contract, if the consideration on which the contract was leased is denied in the answer, and the action is tried hy the Court, it must find on that issue.
    Appeal from the District Court, Third Judicial District, County of Alameda.
    The plaintiffs were husband and wife. The plaintiffs recovered judgment, and the defendant appealed. The other facts are stated in the opinion.
    
      Garber & Thornton, for the Appellant.
    
      William Higby, for Respondent.
   By the Court:

The complaint alleges that the defendant agreed to purchase, and did purchase, for one of the plaintiffs—Mrs. Kennedy—fifty shares of a certain mining stock, “ which stock was placed by the defendant in the hands of James H. Latham, to be sold by him on the order of Catherine S. Kennedy, one of the plaintiffs, at any time within sixty days thereafter ”; and that she was to have the dividends to accrue upon the stock, and the profits to arise upon the sale thereof, after deducting cost of purchase and interest; that the consideration for the defendant’s agreement was the sale and delivery by the plaintiffs to the defendant of certain shares of the stock of a certain insurance company; that at a certain time within the said sixty days the fifty shares of mining stock were worth one thousand two hundred and ninety-one dollars and fifty cents more than was paid for the same, and a dividend of three dollars per share was paid thereon ; and that at a time within the said sixty days the defendant “ sold and placed beyond the control of the plaintiffs, or either of them,” the fifty shares of stock purchased by him as aforesaid ; and that, “ by the wrongful acts of the defendant in the non - fulfillment of said agreement, plaintiffs are damaged in the sum of one thousand three hundred and fifty-two dollars and seventy-five cents.”

The defendant specifically denied a part of the above allegations, among others, that in regard to the consideration ; but the Court failed to find upon that issue.

The action, as we construe the complaint, is brought to recover damages for a breach of the contract, in failing to permit the stock to be sold on the order of the plaintiff—Mrs. Kennedy— and for her benefit, and is not an action for the conversion of the stock ; for it is not averred that the title to the stock had ever vested in her. The plaintiffs cannot recover for a breach of the-alleged contract in the absence of a finding of the consideration, for the defendant’s promise.

Judgment and order reversed, and cause remanded for a new trial. Remittitur forthwith.  