In that event the injured party is unable to complete the work himself and, subject to the restrictions of sections 3300 and 3359 of the Civil Code, the proper measure of damages is the difference in value of the property with and without the promised performance, since that is the contractual benefit of which the injured party is deprived. ( Knoch v. Haizlip, 163 Cal. 146, 154 [ 124 P. 998]; South Memphis Land Co. v. McLean Hardwood Lbr. Co., 179 F. 417, 423-424 [102 C.C.A. 563]; Hyatt v. Wiggins, 178 Ark. 1085 [ 13 S.W.2d 301, 303].) In the present case the contract was to be performed entirely on property that is not owned by plaintiffs.

Section 3300 of the California Civil Code provides the following measure of damages arising from a breach of contract in circumstances such as are developed in this record: "For the breach of an obligation arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom." Generally speaking, the true rule to ascertain the damages suffered by the cross-complainant is thus set forth in Knoch v. Haizlip, 163 Cal. 146, 154 [ 124 P. 998]: "It may be well, as guide to further proceedings in the court below, to indicate our view of the proper measure of damages. The court below seems, after some discussion, to have taken the position that the damages, if the plaintiffs had a right to recover, were to be measured by the difference between the value of their property if the agreement had been performed and its value under the existing conditions.

This is a property right that can be created by instrument. ( Kennedy v. Burnap, 120 Cal. 488 [ 52 P. 843, 40 L.R.A. 476]; Knoch v. Haizlip, 163 Cal. 146 [ 124 P. 998].) [8] In the instant case the plaintiffs' right to light and air was created by the original deeds to lots in the subdivision.

Thus the agent may be sued thereon individually and he himself may sue and recover on the contract as an individual. ( Johnson v. Benton, 73 Cal.App. 571, 574 [ 239 P. 63]; London v. Zachary, 92 Cal.App.2d 654, 657 [ 207 P.2d 1067]; Knoch v. Haizlip, 163 Cal. 146, 151 [ 124 P. 998]; Patterson v. John P. Mills etc., Inc., 203 Cal. 419, 421 [ 264 P. 759]; Geary St., etc. R.R. Co. v. Rolph, 189 Cal. 59, 64 [ 207 P. 539]; J.M. Wildman, Inc. v. Stults, 176 Cal.App.2d 670, 674 [ 1 Cal.Rptr. 651]; Allen v. Dailey, 92 Cal.App. 308, 315 [ 268 P. 404]; Civ. Code, § 2343) [15] The Bank, having placed itself in a position to enjoy the advantages of the sale must also bear the obligations of the contract of sale including the statutory duties inherent therein.

In that event the injured party is unable to complete the work himself and, subject to the restrictions of sections 3300 and 3359 of the Civil Code, the proper measure of damages is the difference in value of the property with and without the promised performance, since that is the contractual benefit of which the injured party is deprived. ( Knoch v. Haizlip, 163 Cal. 146, 154 [ 124 P. 998]; South Memphis Land Co. v. McLean Hardwood Lbr. Co., 179 F. 417, 423-424 [102 C.C.A. 563]; Hyatt v. Wiggins, 178 Ark. 1085 [ 13 S.W.2d 301, 303].)"

Also, her deed of the water rights in the four parcels provides that all water developed on any of the four lots shall belong to the children in equal undivided shares and shall be put to beneficial use upon those four lots only. The truth of such recital in the deed accepted by appellants is deemed conclusive and no evidence can contradict it. (Subd. 2, Code Civ. Proc., § 1962; Estate of Mills, 137 Cal. 298, 303 [ 70 P. 91, 92 Am.St. Rep. 175]; Knoch v. Haizlip, 163 Cal. 146 [ 124 P. 998].) [6] Appellants contend that the water contract was executed for the specific purpose of enabling defendants to procure a loan on lot 6 and that their rights to the water from lot 2 for use on lot 6 had been established by over 30 years of adverse enjoyment.

This question must be answered in the affirmative. The law is settled in California that it is reversible error for the trial court to fail to make a finding upon a material issue properly raised by the pleadings if, as in the instant case, there is any evidence which would support a finding in favor of such defense ( Due v. Swartz, 22 Cal.App. (2d) 217, 218 [ 70 P.2d 716]; Lyden v. Spohn-Patrick Co., 155 Cal. 177, 182 [ 100 P. 236]; Knoch v. Haizlip, 163 Cal. 146, 153 [ 124 P. 998].) There is no merit in plaintiffs' assertion that defendant is estopped from invoking the defense of the statute of frauds, for the reason that estoppel as to any defense which would otherwise be available to the defendant (appellant) under the facts stated in a complaint may not be relied upon by the plaintiff (respondent) unless the estoppel is pleaded ( Cohen v. Metropolitan Life Ins. Co., 32 Cal.App. (2d) 337, 347 [ 89 P.2d 732].)

[3] It is the duty of the owners of an easement to keep it in repair ( Bean v. Stoneman, 104 Cal. 49 [37 P. 777, 38 P. 39]; Durfee v. Garvey, 78 Cal. 546 [21 P. 302]; Ware v. Walker, 70 Cal. 591 [12 P. 475]), so that a minority of several property owners would not be authorized to speak for all and by the execution of a private agreement deprive them of vested rights by attempting to make their interest dependent upon the performance of a legal duty. ( Knoch v. Hatzlip, 163 Cal. 146 [ 124 P. 998].) In Petitpierre v. McGuire, 155 Cal. 242 [ 100 P. 690], it was held that when the owner of a small tract of land subdivides the same into lots, leaving a street, avenue, way, court, or cul-de-sac between them, opening on a public street, and sells such lots as bounding on the same, he covenants to his grantees or their successors that it is such, and they are entitled to the use thereof as an easement or right of way for purposes of travel, light and air, and as a means of ingress and egress to their respective lots, and the grantor will not thereafter be heard to deny the same against a grantee or his successors.

It was his individual act purporting to bind him alone, and even if he had proved a lack of personal interest in the loan he was nevertheless personally bound by the writing. ( Hall v. Jameson, 151 Cal. 606, 611, [121 Am. St. Rep. 137, 12 L. R. A. (N. S.) 1190, 91 P. 518]; Knoch v. Haizlip, 163 Cal. 146, 151, [ 124 P. 998]; Hobson v. Hassett, 76 Cal. 203, 205, [9 Am. St. Rep. 193, 18 P. 320].) [3] The appeal of the partnership and Herman Goldschmidt really presents but two questions: (1) The sufficiency of finding No. 15 to support the judgment against them; and (2) the sufficiency of the evidence to support that finding.

It may be conceded, without deciding, that the plaintiff could not have been compelled to make payments which it made; but, having made the payments, its claim finds full support in section 1605 of the Civil Code, which provides: ". . . any prejudice suffered or agreed to be suffered by such person [the plaintiff] other than such as he is at the time of consent lawfully bound to suffer, as an inducement to the promisor (the defendants) is a good consideration for a promise." (See, also, Knock v. Haizlip, 163 Cal. 146, 153, [ 124 P. 998], and Bacon v. Grosse, 165 Cal. 481, 490, [ 132 P. 1027].) Let us make the situation still clearer: A and B are conversing; C approaches and asks for a contribution for charity; A asks B to pay C one hundred dollars and states that he will repay B; thereupon B pays one hundred dollars to C as requested by A. No one, we think, would question the liability of A to B.