Kessler v. Young

SHENK, J.,

pro tem.

The plaintiff Mae H. Kessler brought this action alleging in the first count a balance due of $450 on an express contract for services rendered and $93 for money advanced; in the second count a balance of $70 due on an assigned claim for services rendered by the plaintiff Prank P. Kessler, her husband, and in the third count a claim for $50 assigned to her by one Edith J. Thom, on a contract for services by the latter as surety on an undertaking in claim and delivery.

At the beginning of the trial Mrs. Kessler was granted leave to amend by joining her husband as a party plaintiff, to satisfy the requirements of section 370 of the Code of Civil Procedure, and by adding an item of $15 to the first cause of action on account of money loaned. Plaintiffs were then granted additional leave to amend by setting up by way of a common count in

quantum meruit

the sum claimed to be due on the express contract alleged in the first cause of action. The defendant answered denying generally and specifically the allegations of the original complaint, and objected to the filing of the amendments. It was stipulated that the allegations of the amendments might be deemed denied. Judgment went for plaintiffs in the full amount prayed for, and defendant appeals, basing

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her appeal on certain alleged errors occurring during the course of the trial, but especially on the contention that “on the examination of the entire cause, including the evidence, a miscarriage of justice has resulted from the judgment herein”—citing section 4% of article VI of the constitution.

As to the principal contention, the argument of counsel for appellant seems to be that regardless of any of the alleged errors a miscarriage of justice has taken place in that the trial court decided the cause contrary to the preponderance of the evidence. To use counsel’s language: “If there ever was a case in which the doctrine of the preponderance of evidence should prevail it is the case at bar.”

The plaintiff Mrs. Kessler testified that the defendant engaged her to assist in the management of her property and in the preparation for trial of certain lawsuits then pending and in which the defendant was an interested party, and that defendant had agreed to pay her for such services the sum of $500; that she had performed the services required by her contract, and that $50 and no more of the contract price had been paid. Mrs. Kessler also testified as to the money advanced for the use and benefit of defendant, and at her request, and which had not been repaid. The assignors of Mrs. Kessler also testified positively as to their claims and the amounts due thereon. The defendant in her testimony denied the alleged or any contract for services. She testified that whatever moneys had been advanced had been repaid by her; that no agreements were ever made with the assignors of Mrs. Kessler, and that they were entitled to nothing. The evidence on behalf of the contending parties was positive and substantial but irreconcilably conflicting, and on such conflict the court found in favor of the plaintiffs.