Rutz v. Obear

Action fob Services—Pleading—Common Count—Sufficiency of Issue—Trial Without Objection—Review upon Appeal.—Where the complaint in an action for services rendered alleged that “within two years last past defendants became indebted to plaintiff in the sum of $1,920 for the reasonable value of services rendered to the defendants at their special instance and request,” describing the services, and alleged demand of payment therefor and nonpayment; and defendants, without demurring, joined issue upon its allegations, and trial was had, without objection to evidence, it is held that, independently of the sufficiency of the common count pleaded, the rule applies that where the parties have proceeded to trial upon a pleading without objection to its sufficiency to raise a particular issue, and evidence has been received as to the facts and the issue found upon, the party whose duty it was to object will not be heard upon appeal to claim that the finding is not within the issue.

Id.—Services in Procuring Tenant for Hotel and Bond for Rental —Immaterial Evidence—Subsequent Loan of Money to Tenant. Where the services were rendered by plaintiff in procuring a tenant for a hotel of defendants, and a bond for rental, the court properly excluded evidence to show that, after the rental, the plaintiff loaned to the tenant money to inaugurate and carry on his business, when it appears without conflict that plaintiff owned no interest in the lease, and the evidence would not tend to show bad faith on plaintiff’s part, or to establish any interest inconsistent with his duty to the defendants; and the immateriality of the evidence offered was apparent from the question asked.

Id.—Support op Findings and Judgment Against Personal Depend-ant—Dismissal as to Hotel Company—Ownership op Stock— Personal Contract.—The findings and judgment against the personal defendant are sufficiently supported, notwithstanding the dismissal of the action as to the hotel company defendant, where it appears that the personal defendant owns all of its stock, and that the contract sued upon was made by him individually, and he personally requested the services and promised to pay the plaintiff therefor.

Id.—Admissions op Personal Dependant—Estoppel to Deny Ownership.—-The admissions of the personal defendant were competent to bind himself personally; and where one procures services to be performed in connection with property, based upon a belief of ownership from representations of the party sought to be charged, such party is estopped, after such services have been' performed, to deny ownership.

Id.—Judgment not Excessive.—It is held, in view of the evidence, that the judgment rendered by the trial court against the appellant for services performed is not excessive.

Id.—Conditional Opper op Additional Compensation not Complied With.—A conditional offer of additional compensation beyond that fixed by the judgment, not complied with, is immaterial and does not affect the validity of the judgment rendered for actual services performed.