The contract referred to and out of which this controversy grows was consummated through written correspondence between the plaintiff and the defendant, the former, insofar as the pleadings disclose, first addressing to George De Latour, the president and manager of the defendant, the following letter, dated at the city of San Francisco, on August 19, 1909:

"As per your inquire for a Must Pump, 4x4, and a grape crusher and Stemmer (combined) with shaft, belting, pulleys, pipes and fitting also, installation of same at your vineyard, at Rutherford, Cal., without the freight expenses, we will furnish all the above machinery and parts for the sum of $1000.00. We also guaranty you that the machinery shall work on good order.

"This price includes gasoline engine of 10 H. P. "Yours very truly A. Rossi & Co.,

"A. Rossi."

To the foregoing letter, the defendant, by De Latour, replied as follows:

"Referring to your letter of even date and our conversation this morning with your Mr. Rossi, we beg to confirm the following purchase: You will supply and set up at our winery at Rutherford, as indicated by us, a must pump, grape crusher and stemmer combined of a capacity of not less than one hundred tons per day, with shaftings, beltings, pulleys, pipe and fittings complete, and a Peerless gasoline engine of ten H. P. without any expense to us except the freight and teaming from the Rutherford station to our winery, and carpenter and mason work, for the sum of one thousand dollars, payable five hundred dollars before the end of September, and five hundred dollars before the end of October, when all the machinery has proven to give satisfaction.

"It is understood that everything must be set up and in running order on or before September tenth, 1909.

The plaintiff did not complete the delivery and installation of said machinery until the nineteenth day of September, 1909. This delay, the plaintiff claims and alleges in his complaint, was due entirely to the neglect of the defendant in not hav

ing prepared the masonry work or the concrete foundation for the gasoline engine.

After the machinery had been installed, the defendant complained that it did not work satisfactorily or perform in the proper way the functions for which it was intended, and thus there arose between the parties differences to settle which they, on the fifth day of October, 1909, made and entered into an agreement in writing which, after reciting the differences existing between the parties as to the machinery and that the defendant intended at the date of said agreement to make a payment of two hundred dollars to the plaintiff on the contract price of the same, provided Rossi & Co. should "exchange the stemmer, and fix the said machinery so that it will operate satisfactorily for two days, after which said time said De Latour is to pay the said A. Rossi & Co. the further sum of three hundred dollars, said exchange and said satisfactory run of two days to take place before the 15th day of October, 1909," further provided: "Said G. de Latour further agrees to pay the balance of five hundred dollars by the end of October, 1909, providing the said machinery and equipment furnished complies with the guaranty of A. Rossi & Co. All of the other conditions of said original agreement are to remain in full force and effect, and the present payment of two hundred dollars and the foregoing is understood to be an attempt to settle the present difficulties. . .

At the time of the execution of the last-mentioned agreement, the defendant paid to the plaintiff the sum of two hundred dollars.

The complaint alleges that the plaintiff, after the execution of the said last-mentioned agreement, "did perform and carry out all of the conditions agreed to be performed by it under said agreement, dated October 5, 1909, and did exchange said stemmer on the 11th day of October, 1909, and did operate said machinery satisfactorily for two successive days, to wit: On October 11, 1909, and October 12, 1909, and that said machinery is now and ever since said 11th day of October, 1909, has been in good condition and operating in a satisfactory manner; that said A. Rossi & Co. has performed every and all of the conditions agreed by it to be performed under the agreement herein above referred to as well as under the agreement last hereinabove referred to."

The making of the agreements above referred to is not con'troverted by the answer, but it denies that the plaintiff at any time placed said machinery or any part thereof in good working order, and, in this connection, alleges: "That said machinery and every part of it has wholly failed to do and perform the work required of it, or in any particular to comply with the said guaranty of the said A. Rossi & Co.; that the piping in said machinery was not properly done, and that the same clogs up and prevents the machine from operating; that the gasoline engine mentioned in the complaint . . . does not work properly or sufficiently or according to the guaranty of the said A. Rossi & Co.; that the stemmer in said machinery does not operate properly, nor is the same properly constructed; that the pulleys and belts used in said machinery are not of the requisite size, or make or character; and that said machinery, and every part of it, has failed to do or perform the work for which it was intended and for which the said A. Rossi & Co. guaranteed its performance; that defendant . . . has often requested said A. Rossi & Co. to repair said machinery but they have wholly refused to so repair or perfect the said machinery, or to comply with their said guaranty"; the answer denies that the delay in installing said machinery was due to any fault or the neglect of the defendant in the preparation of the concrete foundation for the gasoline engine, but alleges that the delay in the installation of said machinery was occasioned solely by the neglect of said A. Rossi & Co.; denies that, subsequent to the fifth day of October, 1909, the said A. Rossi & Co. "did perform and carry out all the conditions agreed to be performed by it under said agreement dated October 5, 1909, and further denies that the said A. Rossi & Co. did operate said machinery satisfactorily for two successive days"; denies that said machinery has at any time worked satisfactorily or according to the terms of the agreement, or that it is now or at any time has been, since its installation, in good condition or operated in a satisfactory manner, and alleges that "the said machinery and every part of it fails to perform the work required of it, or for which it was intended, in a proper or satisfactory manner"; admits the payment by the defendant to A. Rossi & Co., on the fifth day of October, 1909, the

sum of two hundred dollars on account of and in accordance with the terms of said agreement.

The defendant also filed a cross-complaint, in which it pleads the agreement entered into between A. Rossi & Co. and the defendant, and alleges that the former guaranteed, in writing, that the machinery which said Rossi agreed to furnish to and install for the defendant would run and operate and perform the work for which it was intended in a proper and satisfactory manner; alleges delay in installing said machinery and that such delay was caused solely by the unwarranted neglect of the plaintiff; that by reason of said delay the "defendant and cross-complainant was prevented from complying with certain contracts which it had with the grape-growers in the vicinity of cross-complainant's vineyard, for the crushing of their grapes within said time, and was put to great loss and expense and inconvenience"; alleges that, by reason of the defectiveness of said machinery and its consequent failure to properly perform the work it was intended and warranted to perform, and the failure of Rossi to correct the defects therein after having been notified thereof and requested by the defendant to rectify the same, the defendant suffered the loss of three hundred gallons of wine on each of thirty-five days during which it endeavored "in good faith" to run and operate said machine and machinery, and that the value of said wine so lost is twelve cents. per gallon; that the defendant was compelled, by reason of the "defective construction of said machinery and of its character, to employ an expert machinist to endeavor to remedy the defects in said machine, for which the defendant and cross-complainant incurred a liability, the amount of which is not as yet known to it"; alleges that the present value of said machinery as so delivered and set up by the said A. Rossi & Co. does not exceed the sum of two hundred and fifty dollars."

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The cross-complaint asks for judgment: That plaintiff take nothing against the defendant by reason of plaintiff's action, and, further, that the defendant and cross-complainant "do have and recover from said plaintiff the sum of two thousand and ten dollars, and, further, for such additional sums as defendant has incurred in an endeavor to repair said machinery, and for costs of suit."

The plaintiff answered the cross-complaint, specifically denying and admitting the material allegations of that pleading, according as such allegations were true or not true from the plaintiff's viewpoint.

The contention of the appellant is: 1. That the court erred in not finding as to the damage alleged to have been sustained by the defendant in the loss of wine during the period during which it endeavored, without success, because of the defectiveness of the same, to operate the machinery mentioned in the pleadings; 2. That the evidence does not support certain findings; 3. That the findings are irreconcilably inconsistent.

It is preliminarily objected by the plaintiff that, the appeal being from the judgment only, the question whether the evidence supports the findings cannot be reviewed. This appeal, as stated, is taken under the new or alternative method, and by the objection thus raised we understand the point is sought to be made that, because the appeal was not taken "within sixty days after notice of entry of judgment," the evidence cannot be considered or reviewed. (Code Civ. Proc., secs. 939, 941a, 941b, 941c.) The point is not well taken. The judgment was rendered and entered on the twenty-first day of April, 1910. The notice of appeal was served on the attorney for the plaintiff on the twenty-ninth day of April, 1910, and filed on the thirtieth day of said month. There is no evidence in the record of any notice of the rendition of the judgment having been served on the defendant. There can be no doubt that, under the circumstances as thus indicated, it is competent for this court, if it be found necessary, to consider the evidence, notwithstanding that the appeal is from the judgment only. (Brown v. Coffee, 17 Cal. App. 381, 383, 386, [121 Pac. 309, 311].)

As stated, it is claimed for a reversal of the judgment that the findings are contradictory, that some of them find no support in the evidence and that the court failed to make a finding upon a material issue submitted by the cross-complaint. While the judgment will have to be reversed for the last-stated reason-that is, because of the omission by the court to make a finding upon the question of damage from loss of wine alleged by the cross-complaint to have been sustained by the defendant by reason of the alleged defectiveness