Dickson v. Keeler

KOFORD, P. J. This is an appeal by defendant from a judgment in favor of plaintiff for damages for breach of contract. Defendant and the assignor or assignors of the plaintiff entered into a contract for the exchange of advertising space. The judgment is based upon the finding that plaintiff’s assignor performed its part of the contract but defendant did not. Two points are raised by the appellant as reasons for reversal. First, he claims the service agreed to be performed by plaintiff’s assignor was of such a nature that it could not be assigned without consent of defendant and that the evi dence shows the assignment was made before and not aftei the breach by defendant giving rise to the cause of action. The findings of fact made by the court show that the breach occurred before the date of the assignment claimed by appellant. Second, he claims the trial court did not give proper weight to the evidence of custom and usage in respect to the time within which the contract should have been performed by the defendant. Both of these questions involve a consideration of the evidence introduced at the trial. Respondent raises the point that the appellant has failed to comply with section 953c of the Code of Civil Procedure, and the numerous decisions of this court requiring him to print in his brief, or in a supplement appended thereto, such portions of the record to which he wishes to direct attention. The point is well taken. (McLaren v. Hards, 39 Cal. App. 104 [178 Pac. 332]; Pasadena Realty Co. v. Clune, 34 Cal. App. 33 [166 Pac. 1025].) The appellant did not appear to argue nor has he replied to respondent’s brief. Furthermore, enough of the *96 evidence is printed in respondent’s brief to show, at least prima facie, that the evidence supports the court’s finding that the contract was breached before the assignment was made. [3] There is no evidence shown either in appellant’s or respondent’s brief concerning the alleged custom or usage as to the time within which the contract should have been performed. The evidence printed in respondent’s brief, however, shows defendant’s persistent neglect to perform the contract extended over a period of several years. The point seems to be wholly without merit. The judgment appealed from is affirmed. Nourse, J., and Sturtevant, J., concurred.