Dewing v. Gin S. Chow

[443]

WORKS, P. J.

This is an action to recover fees for services rendered by an official reporter of the superior court. Judgment went for plaintiff, and defendants appeal.

Early in the brief of appellants six certain points are stated as those made for a reversal of the judgment. Each of these points is circumstantially couched and was evidently drawn with care. They are inserted at the close of the portion of the brief devoted to a statement of the facts of the case. In the remaining portion of the brief, that devoted to argument, not one of these six points is inserted, in terms, as a heading to any portion of the printed discussion. One or two of them do not appear, even in briefer style, as headings. One or two are set down as headings in a much curtailed and abbreviated form. In disposing of the appeal we shall pay no attention to the six points, unargued as they are, but shall consider only the arguments advanced, all .being put forth, as we have said, under “points” otherwise stated. Such a course is proper under the well-known rule that questions suggested in a brief but not argued are not to be considered. The points which are discussed in the brief are four in number.

The first point is thus stated: “Full performance a condition precedent to right to fees.” This cryptic and unenlightening group of words is made intelligible by the argument which follows it. The service rendered to appellants by respondent consisted in the delivery to their counsel, daily, of transcripts showing the testimony taken on the day preceding each delivery and while the trial of an action in which appellants were parties was in progress. There was also a daily copy delivered to the judge, for which appellants were to pay one-half the charge. These daily transcripts were rendered as the trial proceeded, during practically all of the trial days over a period of five months, or thereabouts. The installments were paid for daily for some time, but payment was never made for those delivered during the latter portion of the period. This action was commenced to recover the balance thus left due. We now come to the specific point made by appellants. The daily transcripts were not certified by respondent as correct. Section 269 of the Code of Civil Procedure reads, in part: “[I]f directed by the court, or requested by either party [the phonographic reporter] must, within such reasonable