On  the  13th day of July, 1907, at Davao, Moro Province. the  plaintiff and the  defendant Cenon Rasay entered into a  contract which the parties called a  "contract of  lease' which, omitting the introductory part, reads  as  follows: 

"The said party of the first part agrees to lease to the said party  of the  second  part a  two-story building located on the  west side  of Calle Bolton about  150 feet  south of Calle San Pedro, municipality of Davao, District of Davao, Mindanao, P. I., the lower structure of said building being of cement block,  and the upper structure being frame.

"Said building  may be used by  the said  party of  the second part, during the term of this lease, for any purpose whatsoever.

"The said party of  the  first part agrees to keep the said building in good condition and repair, making  at his own expense any and all repairs or changes found to be necessary by the party of the second part; also the party of the first part agrees to furnish all necessary shelving in  said building found to be necessary by the said party  of the second part, this at the expense of the party  of the  first part.

"The term of this  lease will run for the period of five (5) years from the 1st day of January,  1908,  by which time the said  party of the first part  agrees to  have  said building in such shape as may  be required by the party of the second  part, provided that any instrument  (instructions)  which said party of the second part may give in regard to the  arrangement of  the building shall  be given in writing,

"Said party of the second part agrees to pay as a monthly rental  on  said building, the sum of one hundred and fifty (P150) pesos Philippine currency, said monthly rental to be due on the last day of the month for which paid; further, the said party of the second part agrees to advance to the  said party of the first part the  sum of four thousand (P4,000) pesos Philippine  currency, for the  purpose of completing said building,  the said four thousand pesos to  draw interest at the rate of eight  (8%) per cent per annum from date of receipt by the party of the first part, and provided further that said four thousand pesos  thus advanced shall be applied as rent on said building at the  rate  of one hundred and  fifty pesos per'month and no further rent shall be paid by the said party of the second part until this obligation may  have been satisfactorily settled.  In  case of the insolvency of the said party of the first part any amount of the said  four thousand pesos advanced which remains unpaid and any interest due thereon  shall be considered as a lien against any property which the said party of the first part  may be the owner or part owner thereof.

"Notes of the said  party of  the first part  for  the sums of five hundred (P500) pesos Philippine currency and three thousand five hundred (P3,500) pesos  Philippine currency are hereto annexed  and made a part of this instrument.

"Upon the termination or expiration of the term of this lease herein described, the said party of the second part shall have the option of releasing or renewal of the same for a further term of one, two, three, four,  or five years, at the discretion of the said party of the second part, said party of the second part in case of renewal  or releasing, paying to the said party of the first part, his heirs or assigns, the monthly rental of one hundred and fifty  (P150) pesos Philippine currency, said rental being  due upon last day of the month  for which paid.

"The  said party of the first part,  his heirs or assigns, are hereby one and all bound to the provisions of this lease. Executed by the within mentioned parties on  this 13th day of July,  1907, at Davao, Moro Province, P. I.

"CENON RASAY,
    "Party of the First Part,
    "GEO. D. TEMPLETON,

"Acting for and  in behalf of the Party of the Second Part

"Witnesses -   

"MAX L. MCCULLOUGH.
      "H. PEAHY." 

The two promissory notes above referred to are:

"DAVAO, MIND., P. I., July 13, 1907.

"For value received, I promise to pay Macleod  & Co. of Manila, P. I., the sum of five hundred (P500) pesos Philippine currency on or before April 30th, 1908, said amount to be paid in monthly installments of one hundred  and fifty (P150) pesos Philippine currency per month beginning with January 31st, 1908.  This note to bear interest at the rate of eight per cent (8%)  per annum from date.

"CENON RASAY,

"Witness -   

"H.  DEABDY." 

"DAVAO, P. I., September 9, 1907.

"For value received I promise to pay to Macleod & Co. the sum of three thousand  five hundred pesos Philippine currency (P3,500), said payment to be made in monthly installments of one hundred and fifty pesos Philippine currency (P150)  following consecutively  after the  previous note given by me for five hundred pesos Philippine currency (P500)  and dated July 13, 1907.  This note bears 8 per cent interest from date of issue.

"This note  is to be attached  to the lease  or contract entered  into by  and between myself and Macleod & Co. July 13, 1907.   

"CENON RASAY. 

"Witness -
  "GEO. D.  TEMPLETON."

The learned trial court found the facts to be as follows:

"It  conclusively appears  that the  plaintiff and the defendant, Cenon Rasay, entered into a contract on the 13th day of July, 1907, at Davao, in the Moro  Province, P. I,, whereby the defendant Rasay agreed to lease to the plaintiff a  two-story building located in the municipality of Davao, the lower story of said building being of cement block and the upper structure being of frame; that the lease of the building was to begin on the 1st day of January, 1908, and to run for five years, and the plaintiff was to pay one hundred  and fifty  pesos  per month  on the last day of  each month, and  as another part of the agreement the plaintiff agreed to advance the defendant Rasay the sum of  four thousand pesos in order to enable him to complete the building, and the four thousand pesos  were to draw interest at the rate of eight per cent per annum from date of its receipt, and that this advance should be paid by applying one hundred and fifty pesos due for rent  per month upon the amount, and at the same time and in connection  with the same contract the defendant  Rasay made two certain promissory notes,  one for five hundred  pesos and one for thirty-five hundred pesos, the first five hundred pesos to be paid on or before the 30th day of April, 1908, by monthly installments of one hundred and fifty pesos each, and this note bore interest at eight per cent from date, and the note for thirty-five hundred pesos was to be paid in monthly installments of one hundred and fifty pesos each, following consecutively  after the previously mentioned note of five hundred pesos had been paid, and this note bore interest at eight per cent from date.

"The plaintiff advanced the money either in  cash  or in merchandise,  and no  part of same has  ever  been paid except the sum of  three hundred and sixty-two pesos which an agent of plaintiff succeeded in  getting hold of from  the defendant Rasay.

"After the contract had been made and the building was in process of finishing, the defendant Rasay  had execution levied against him, and the building in question  was levied upon  and was sold and the defendant Marfori  purchased it at  a judicial sale.  The  defendant Marfori  resided  in Manila and had representing him at Davao, with full power of attorney as he  himself declares, one Bienvenido  Blanco, who made a contract with the plaintiff  in relation to the building,  which  provided that  he  was  fully  informed regarding the terms of the certain contract between the defendant Rasay and the plaintiff as regards the lease of the building, and  that by virtue of his power of attorney for the defendant Marfori,  he for and in behalf of said  Marfori agreed  that should the building come into  possession of Marfori, or he  have control of same,  that said Marfori would comply with all the provisions of the contract above mentioned, and that should any sum of money be advanced by the plaintiff to  said Rasay, such sum would be used for the purpose of completing the building, and if not  used it was to be returned to the plaintiff.

"Among other  provisions of  the contract  between the plaintiff and the defendant Rasay, it was  agreed that the four thousand pesos advanced, as long as it remained unpaid, should constitute a lien against  any  property  which the defendant Rasay then had.

"The plaintiff was ready to take  over the house as agreed in the contract on the 1st day of January, 1908, but the house was not completed so that it could be occupied by the plaintiff.

"As herein before found, the contract provided that the lower structure of the house should be built of cement block and the upper structure of frame.  The house  was of  two stories, and it must be concluded that that which said lower structure meant was the lower story, and the upper structure the upper or second story. Witnesses for the plaintiff stated that the lower story was to be built  of cement blocks, and that no part of the house was built with cement blocks, but that about three or four feet from the ground had been built of some kind of stone, and then above that thin boards constituted the wall  of  the  rest of the lower  structure or story of the house, which could not be used by the plaintiff for the purpose to which they designed to put the building.

"Some of the witnesses testified that the building  was nearly completed on the 1st  day  of  January,  but one of the witnesses for the defendants  testified that he worked upon  the building all the time until it was finished,  and that it was not finished  until the last days of March, 1908, and then in the condition in  which it now is, and that there were no cement blocks used in the construction of the building in any part of it, as required by the contract.

"There was clearly a breach of contract on  the part of the defendant Rasay in  two  respects:  one is that the building was not completed so  that it  could be turned over for rental to the plaintiff at the  time stipulated in the contract, and the other was that the building was not constructed as the contract required."

Judgment was granted by the trial court in the following language;

"Let judgment be entered in  favor  of  the plaintiff, Macleod & Co.,  and against the  defendant Cenon Rasay, for the sum of P3,638,  with interest thereon at eight per cent per annum since the 13th day of July, 1907, and for the costs of this action, and against the defendant Simeon Marfori and  the defendant  Cenon Rasay, that the house described in the complaint is subject to lien for the amount of this judgment, less the costs, and that the same may be sold to satisfy the judgment."

We  are  of  the  opinion  that  the  judgment  must  be affirmed.  The evidence  produced  upon the trial  clearly shows that, as the learned trial court well said, the defendant Rasay failed to perform his contract in two particulars: First. He did not construct the lower  story of the building in the manner and with the materials required by the terms of the contract.   Second. He did not complete the building within the time prescribed by the  terms  of the  contract. The evidence also shows that there was not even a substantial fulfillment of  the provisions of the contract.  While the failure to perform was  not absolutely complete, it  was so substantially complete that the plaintiff was  fully justified in rescinding the contract and recovering the amount he had paid.

Mr.  Kingcome, presented by  the attorney for the defendants as their witness, testified  that he was the representative of Macleod & Co. at Davao for about two  and one-half  months  in the  years 1907-08; that he reached Davao  about the  28th or 29th of December and left there about the 17th of March, 1908;  that  he was the agent of the plaintiff and the manager of its branch; that the Davao branch was engaged in the business of buying products of the country  generally, such as  hemp,  and in selling tin goods and groceries; that when he went to Davao the building mentioned in  the contract was being built, but the floor was not quite finished and the lower story was according to the contract and specifications  not yet begun.  He said:

"The specifications that I refer to are those that appear in the contract dated Davao,  July 13, 1907. *   *  *  I did not take much interest in the  building.  I refused to accept the building and  therefore  did not take  much interest in it.  I refused the building, if I remember, on the 29th of December.  The reason  why I refused it on that date was it was not ready on the 29th and  there was no possibility of  its being ready and I refused to receive it. It was not ready and I would not take it.  I notified Cenon Rasay that I  would not take it.  I  advised  him as agent for Simeon Marfori  that I should  not receive the house unless it  was finished  according  to the  specifications  by the 31st of December, 1907.   That advice was verbal and also in  writing.  I do not know anything about  Macleod & Co. having agreed to furnish part of  the material for that building.   Macleod & Co. agreed to furnish them with P4,000.  All I  know  is  that  according  to  the  contract Macleod & Co. agreed to furnish them with P4,000.  *  *  * There was no possibility of the building being finished by the 31st of December;  The contract called  for the basement to be made of cement blocks.  It was very important to us and  all he had done he had put in stone  to a height of about three feet and the rest was wood.  There was no stone floor in  the basement  at that  time  but the wall was about three feet high of stone.  There  was no stone floor  in the basement at  all.  Prior to my departure for Davao I had not received any instructions  from  Macleod & Co. to receive the building.  That subject  was not even mentioned to me.  When I took over the management when I was looking  into things  I saw this contract and  the condition of the house, and I saw it was not  worth our while to go on playing with the house.  They had had six months practically to build the house in and had not done it  only, really, two months' work.   There was no other building in Davao that we might have occupied at that time.   Macleod & Co. continued in  business  at Davao  2 1/2 months after we refused to receive the house.  I left Davao about the 17th  of March.  The business  was closed  at that time. Some little  things I  left in charge of another firm down there to clear up for me.  I received my instructions as to the closing up of the business at the end of January.  I then immediately proceeded to close the business.   It took about 2 1/2 months to get it closed up.  On the 17th of March the lower story of the house was  still practically unstarted according to the contract.  It called for cement blocks and as I said they had  only got this wood.  I' do  not  know when the building was eventually completed but there were no cement blocks in  the  building on the 17th of March on the lower floor.   *   *   *  I believe the floor, the cement floor, was finished on the 17th of March.  They started to work on it about January.  They bought the cement from us to make that floor.  I knew what they were buying this cement for.  When I notified Rasay that I would not accept the building he replied that the building no longer belonged to him but  belonged to  Simeon  Marfori and that Simeon Marfori  would not give him any money.  That was about the 29th  of December.  If I remember rightly it must have been about the middle of January that he bought the cement. He paid  me cash for it.  That cement was to  put in the floor in the basement of the building.  *  *  *  The cement blocks  were to go clear to the ceiling of the second story, the whole basement.  When  I left there the cement floor was  in but the blocks  were not  in the walls in  the lower part.   The house was not painted and the balcony was not finished.   The house was  not only to be used as a warehouse but also  as  living quarters  and  office.   *  *  *  When I left  in December for  Davao I had no instructions  from Macleod  & Co. to remove the branch from Davao.   The matter of removing the branch from Davao was not even discussed before leaving.  On the contrary, we  were discussing the question of extending the business."

On cross-examination this witness testified:

"The reason why  we  required walls of that character, cement walls, was in the first place for fire insurance and in the  second place for the better preservation of the merchandise inside the warehouse.   Most of this merchandise consisted of hemp. The condition of these walls after what they called completion was that they were about three feet of stone  and the rest  of wood and open work,  great big chinks in between the  slats.  The wall was not completed in such condition that  it  would keep out the elements.  It was not  even  weather-proof.  *  *  *  On the 29th  of December I called Rasay into the office and spoke to him about the building.  I just called his  attention to the condition of the building and told him if it was not in the condition required I would  call  the contract off.  He said  in reply it had left his hands altogether and the house belonged to  Simeon Marfori.  He said that it was not  completed because Simeon Marfori  would give him no money to complete it.   At that time he made no complaint that the house was not completed by reason of the fault of Macleod  & Co.  He never said a word about it.  I did not see Marfori. When I was down there  he was in Manila."

Juan  Mariano,  also a witness for the defendants, testified that he was one of seven or eight workmen engaged  in building the house in question  and  that  they  begun on the woodwork of the same  on the 8th  day of December, 1907; that that was the first  work done  on  the house; that on that date they  began to smooth and prepare the materials for the  building; that they began  to place the timbers on the 14th of December; that he worked on the building with the other workmen until the latter part of March,  1908, before the same  was completed; that prior to the 8th of December he worked for  the defendant Rasay on the American Hospital, another building which the defendant Rasay was erecting in that locality; that in the month of December the building lacked a roof and uprights (harigues); that at the end of December  there were some stones  placed in the lower part of the lower story  of the house,  but after placing  the stones it was necessary to build the wall and place the  other materials; that he  remembered  distinctly that the house was not finished until the month of March. The testimony  of this  witness was  of such a character that the defense deemed it necessary, in  order to  overcome its  evil  effects upon its  case, to  replace upon  the  stand the  defendant  Rasay.  In his testimony upon his  second examination he stated  that all of the work on the  house was completed in  the month of March,  1908.

On cross-examination these questions were asked him:

"Q. What day  of  the month  of  March  was the house completed? - A. I am not able to tell you the precise date, about the middle of March, almost the end of March.

"Q. From the 1st day of January until the end of March you had employed there for the purpose of completing the house 7 or 8 men continuously? - A,  Yes, sir."

This  is the testimony presented by the witnesses for the defendant himself.

George D. Templeton, a witness for the plaintiff, testified that, during the time  when the house in question was being erected, he was an employee of the firm of Macleod & Co. in  Davao; that the defendant Rasay occupied the house himself in  the months of December and  January, although it was not completed; that he thereafter rented it to Capt. W. J. Platka  and Lieut. E. L. Dunsworth and Antonio de Goicouria,  all of the  Constabulary.  He testified also that the house was not completed until March, 1908.

This  witness  also testified that while the plaintiff furnished to the defendant certain  materials, such materials were so furnished in the same way and  for the same purpose as to  other customers; that  the agreement in  controversy was to furnish money and not materials.  The witness denied that the  reason why the plaintiff refused to accept the house was because Macleod & Co. desired to close their business in Davao.

Simeon Marfori himself testified that Rasay occupied the house and that it was afterwards  rented  by him to various Americans.

William J. Platka,  a witness for the  plaintiff, testified that in  the  year 1908 he occupied the  house in  question, having rented it from Cenon Rasay, one of the defendants; that the lower story of the house is about 12 feet high; that he moved into the house about July,  1908, and lived there until March, 1909; that at that time the sides of the kitchen were not yet put up, nor were they on the  lower story which was used as a storeroom.  As to the lower story, there was no cement on the floor and the heat of the sun warped the sides so that in  a severe rainstorm the water would come in and he found it necessary to give it up as a storeroom. He also testified that the wood in the lower  story was of some soft nature, from which the pitch would run.

Herman  Forst testified in behalf of the plantiff that he was assistant manager of the plaintiff company in Manila. He stated in connection with the building of the house as follows:

"The  understanding was that  it was to be according to the contract, and there was also a verbal agreement that the lower part was to be built of cement and the upper part of wood; and I believe there was some arrangement  about the height of the lower part which was to be built of cement; and I remember particularly having taken the matter up because we were going to use the upper part of the building as a dwelling house, and the lower part as a go-down for hemp, and we could not get insurance unless the building was constructed  that way, and we would not think of carrying hemp in a building without insurance."

On cross-examination these questions and answers appear:

"Q. You say it was indispensable that the lower part of that building should be constructed of cement? - A. No, sir; not indispensable for those who would accept a house of that kind, but we considered it indispensable that the building should be constructed of stone  or brick.

"Q. You mean indispensable for the purposes of insurance? - A. Yes, sir;  certainly."

This witness also testified that whatever materials were furnished to the defendant by the plaintiff in the construction of the  house were furnished  promptly on his orders and  were delivered promptly and without delay. Concerning the withdrawal of the branch of the plaintiff company from Davao this witness testified:

"Q. Can  you state whether Macleod  & Co. had  either discussed or had any intention of withdrawing from business at  Davao? - A.  That was in  December; at the time Mr. Kingcome left for Davao there was no intention to withdraw.  The first indication that  we had  that  we should withdraw from the Davao business  came from one of our principals in Chicago sometime in January, 1908; that was the first intimation we had of the intention to close all provincial agencies.

"Q. Now,  if  that  building  had  been  turned  over to Macleod & Co. on the  1st of January, 1908,  can you state whether or not it would have been accepted by the firm? -  A. Of course it would, by all means, as that would have been living up to the contract."

On cross-examination this witness testified  that they had an agent in Davao and that they had received complaints from Mr. Kingcome and  Mr. Stevenson that the building was not being constructed in accordance with the contract.

We have  given  the  testimony of  the  witnesses for the parties thus at length believing that  it  is perhaps  the quickest  and most satisfactory way of disposing  of the errors assigned by the defendants on this  appeal.

That it has met our  expectations in this regard  will appear when we state the assignments of error.  They are as follows:

"The trial court erred in rendering judgment against the defendants and dismissing the cross complaint, because:

"1. Plaintiff elected to sue for damages only, thus under art. 1556 of the Spanish Civil Code, leaving the contract of lease subsisting;

"2. Plaintiff admitted upon the trial that it was not claiming damages, as none such could be proven;

"3. Plaintiff" did not perform substantially its own part of the building contract in question;

"4. Plaintiff admitted upon the trial that notwithstanding that it knew of the alleged noncompliance by defendants with the  building specifications it continued to furnish defendants  materials for the building, with the intention of later remedying the alleged defects itself, so as to comply with insurance requirements;

"5. Plaintiff knew when it furnished the last lot of building materials that it was physically impossible for defendants to complete the building by January  1st, 1908;

"6. The building contract in question did not require that the building be wholly and completely finished by January 1, 1908:

"7. The alleged  nonperformance by defendants  of  the building contract in no way prejudiced plaintiff, as plaintiff expressly admitted upon the trial.

"8. There was a substantial performance of the building contract upon the part of the defendants;

"9. The delay of one year and seven  months in bringing this action is an unreasonable one under the circumstances, and lastly;

"10. The  evidence shows that  the true reason for plaintiff's refusal to accept the building was the closing up of all its Mindanao branches."

As is readily seen, the evidence above quoted, as a matter of fact, disposes adversely to the appellants of the errors assigned as  Nos. 3, 4, 5,  6, 7, 8, and 10.

Apart from the answers which the facts themselves give most of these assignments of error need little attention.

As to the  error assigned as number 2, it may be said that while the plaintiff, in  one sense, has proved no damages, it certainly  cannot be said that it  was  not injured  by  the failure of the defendant Rasay  to furnish it the building which he had agreed to  furnish.  When one has paid full value for one kind of a house and is offered another which will in no sense meet the purpose  prescribed by the contract of purchase, it  seems idle to assert that he has received no injury.   The plaintiff  in this case loaned P4,000  to  the defendant to erect a building for a given purpose and to be built in a certain manner  and at a  certain time. The building  was not completed at the time  specified, it was not built of the materials nor in  the manner required, nor was it at all suitable to the purposes for which the plaintiff desired it.

As to the  third error assigned, namely, that the plaintiff did not substantially perform its own part of the building contract in question, it requires  as little notice as the previous one.  The plaintiff made  no  building contract.  Its agreement was  to furnish to the defendant four thousand pesos,  While it did not deliver to the defendant fully that sum,  it delivered every  peso that he asked  for.  There is no allegation, and if there  were, substantially no proof to support it, that the defendant was  unable to complete the building by reason of the failure of the plaintiff to perform bis part of the agreement in question.   It is the undisputed evidence that the plaintiff never made any contract to furnish the defendant materials in  any sense which legally relates it to the contract of building.  There is evidence that the plaintiff sold and delivered to defendant certain materials which the defendant used in the erection of the building. On the other hand, the great and unquestioned preponderance of the evidence is  that the plaintiff delivered to  the defendant such  materials promptly and  without delay.

As to error number 4,  it need be said simply that we have no recollection that the plaintiff made the admission alleged. The assertion on the part of one of the witnesses for the plaintiff was substantially  to the effect that the plaintiff stood  ready to accept the building, even though it contained many minor defects, provided it was  completed so nearly in accordance with the contract as to make it usable for the purposes intended.   It nowhere appears, so far as we have been able  to find, that it was ever the intention, express or implied, of the  plaintiff to accept  the  building with the serious and substantially irremediable defects which it had even after it had been completed, so called, in March, 1908.

We are unable to see  any material relation which error No. 5 has with the merits of this case.   There is no reason whatever  why plaintiff should refuse to sell the defendant merchandise merely because he  had failed  to complete a building destined for the plaintiff within the time specified in the contract. Plaintiff sold him materials in the same way that  he would sell to  any other customer. The mere fact that defendant was at  the time engaged in erecting a building for the plaintiff does not, in the absence of other facts and circumstances, necessarily indicate any waiver on the part of the plaintiff as  to the time when the building should be completed.

Error No. 6 may be answered by quoting that paragraph of the contract which says:

"The term of this  lease will  run  for  the period of five (5)  years  from the  1st day of January, 1908,  by  which time the said party of the  first part agrees to have said building in such  shape  as may be required by the party of the  second part, provided that any instrument (instructions)  which said party of the second  part may give in regard to the arrangement  of the building  shall be given in writing."

Error assigned  as  No. 7  may be answered in the same way as No. 2 was answered.

In asserting as error No.  8 that "there was a substantial performance of the  building contract  upon  the part of the defendants" the appellants go counter not  only to the preponderance of  but to the overwhelming  weight of the evidence in the case.

We answer error assigned as No.  10  which alleges that "the evidence shows  that the  true  reason  for plaintiff's refusal to  accept  the building was  the  closing up  of  all its Mindanao branches" by  pointing  to the evidence above transcribed in which it clearly appears that the determination of the  plaintiff to withdraw its provincial branches was not made until the latter part of the month of January, 1908, when a sudden and peremptory order to that effect was  received from one of its principal officers in Chicago. Therefore,  at the time of the rejection  of the building by the plaintiff, there was  no intention  whatever upon  its part, so far as the proofs go, to withdraw and abandon its provincial agencies.  The uncontradicted proofs are to the effect that there was rather an intention to extend them.

Adverting to error  number 9,  we are unable to say from the whole  record of this case that the  delay  of one year and seven months on the part of plaintiff in bringing this action was unreasonable. It nowhere appears in the record that  the  defendants have  been peculiarly prejudiced by reason of such delay.

As to the  error assigned as number 1, which deals with the nature of the action brought as determined  by the complaint filed, it appears to  us that the objection is rather technical than substantial.  While apparently the complaint is one founded upon a  breach of contract and prays for damages caused by reason of such breach, nevertheless, it alleges facts sufficient to sustain an action  for  a rescission of the contract and the recovery of the sum paid thereunder. Throughout the trial the parties seem to have regarded the action as one for rescission of contract and recovery of the money paid  thereunder  and evidence was  offered by both parties and  received by the  court apparently upon  that theory.  No  one was deceived by  the technical form and prayer of the complaint.  All of the material facts to sustain either action appear upon the face of the complaint and the defendant was fully notified of the delinquencies of which he was charged and of the grounds upon which the plaintiff sought to recover the money it had paid out.  The question was fairly fought out upon the merits , the  facts fully gone into; every phase of the question investigated and discussed; and we can see no reason why at this time an objection to the form of the complaint should be permitted to prevail.

For these reasons the judgment appealed from is affirmed, without special finding as to costs.

Mapa, Johnson,  and Trent, JJ., concur.