Tayian v. Yeretzian

PREWETT, J.,

pro tem,

This action is founded upon a promissory note in the sum of $333 executed by appellant to one Lillian and by him assigned after maturity to the respondent.

The appellant admits the execution of the note and he makes no pretense that he has liquidated it by direct cash payments. .He claims, however, that he has certain counterclaims thereto aggregating nearly the sum due on the note. He brought a suit in the justice’s court against said Lillian on -these counterclaims and recovered therein a judgment against him in the sum of $286.50. Lillian thereupon appealed from the judgment of the justice, and it was

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stipulated that the two actions should be consolidated and tried as one, and that the justice’s court proceedings and judgment should be deemed and treated as a sufficient plea based upon said counterclaims.

The findings show that the sum of $338 and an attorney’s fee of $50 were due on the promissory note, and that appellant was entitled to a credit of $251 on account of his counterclaims. The court further found that all the alleged items of counterclaim were due, save and except that the reasonable value of the services of appellant in making a trip from Fresno to Modesto was but $25 instead of the sum of $50 claimed by appellant. It is seen that this leaves a balance of $261.50, in which sum the appellant should have credit.

Appellant further claims that he should have been credited with the full sum of $50 for the Modesto trip, in view of the fact that that sum was agreed upon prior to the rendition of the service. Also, he insists that the respondent should not receive an attorney’s fee of $50.

Both these contentions must be sustained. As to the trip to Modesto, the evidence is clear and uncontradicted that Lillian and another were partners; that these partners through the other contracted with appellant to make the trip to Modesto, agreeing to pay him $50 for the service, and that upon the dissolution of the partnership Lillian agreed to assume and pay all the partnership debts, one of which was this item of $50. Under this state of facts the appellant was clearly entitled to credit for the full sum of $50.