Spadoni v. Giacomazzi

THE COURT.

This is an appeal by plaintiff from a judgment in favor of the defendant and from an order denying his motion for a new trial.

In the month of September, 1909, the plaintiff was the owner of real and personal property in the county of Monterey ; and while he was absent serving a term of imprisonment at San Quentin, the defendant, acting under a power of attorney, looked after and managed his property until his discharge in the month of March, 1912. Subsequently the defendant rendered to the plaintiff a statement of his receipts and disbursements as manager of said property, but plaintiff, being dissatisfied with such statement, commenced

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this action for an accounting. The defendant, in addition to his answer putting in issue all of the allegations of the complaint, filed a cross-complaint, in which he claimed seven hundred and fifty dollars for his services in looking after the plaintiff’s property and family during the latter’s enforced absence.

Judgment went for defendant on his cross-complaint in the sum of $687.81, a balance arrived at after crediting him with the aforesaid item of seven hundred and fifty dollars.

As to this item we agree with the plaintiff that the evidence does not sustain the finding by the trial court that the defendant is entitled to this sum for services. Defendant admits that there was no agreement that he should be compensated for his services; and he also admits, at least by implication, that when he undertook the work he did not intend to charge therefor. In this connection it is proper to say that if later he found the duties of the undertaking more onerous than he had expected, and therefore changed his mind and decided to charge for the same, it was his duty to have established a contract with the plaintiff, express or implied, to that effect (15 Am. & Eng. Bncy. of Law, p. 1079). This was not done. The defendant also not only admitted that he might have told the plaintiff’s son that he was making no charge for the services in question, but also testified in effect that it had not occurred to him to do so until the plaintiff commenced this action. The defendant was engaged in the saloon business a short distance from the plaintiff’s ranch, and was attending to the bar at night. The services rendered on the ranch were of a minor character; and it is quite plain, we think, from the record—the plaintiff being the defendant’s father-in-law— that the motive which prompted the services was a desire to help the plaintiff’s wife and son, a mere youth, in the management of the small stock farm, springing from friendship, and that there was not even a remote expectation of pecuniary profit.