Bourne v. Root

SCOVEL, J.,

pro

tem.

The complaint in this action sets up a promissory note executed by defendants to plaintiff alleges nonpayment of the same and prays for judgment thereon. Defendants’ answer admitted liability on the note. Defendants filed a cross-complaint upon a

quantum meruit

for services rendered to the plaintiff and the Yosemite Portland Cement Company. The Yosemite Portland Cement Company was made a party to the action upon the filing of the cross-complaint and both cross-defendants filed an answer thereto in the nature of a general denial. At the trial of the matter it was stipulated that judgment might be entered in favor of plaintiff in an agreed amount upon the complaint, the trial proceeding upon the cross-complaint.

[463]

It appears from the transcript that the plaintiff was a director and the treasurer of the Yosemite Portland Cement Company, a corporation. A conversation in regard to the sale of cement by the corporation was had between plaintiff and defendant, Alfred C. Boot. According to plaintiff the conversation merely related to business being done by the company and its prospects for future sales. He denied ever having made an agreement with defendant employing him to make sales of cement.

This defendant, Alfred C. Boot, was called as a witness and testified that in the conversation plaintiff employed him for the purpose of selling cement to the Valley Paving Company and agreed the company would pay him ten cents per sack for all sacks of cement he might sell. This testimony was objected to on the ground that no proper foundation had been laid in that it had not been shown that plaintiff was authorized to make such an employment contract on behalf of the corporation. A ruling was reserved, but at the close of the trial, upon motion of plaintiff, the evidence was stricken from the record.

J. C. Caldwell, president of the Valley Paving Company, testified that his company purchased the sacks of cement after solicitation by defendant, Alfred C. Boot, and that in a conversation with plaintiff Bourne regarding a discount to be allowed, Bourne stated the discount would be paid through defendant Alfred C. Boot. A similar objection and motion to strike was made to this testimony and at the close of the trial it also was stricken from the record. Judgment was entered in favor of plaintiff Bourne,' on the complaint in accordance with the stipulation and in favor of both cross-defendants on the cross-complaint. From the whole of this judgment cross-complainants appeal. No contention is made that that portion of the judgment in favor of plaintiff on the complaint is erroneous, from which it follows that that portion of the judgment must be affirmed.