Newman v. Newby

STURTEVANT, J.

The plaintiff commenced an action against the defendant to recover a judgment for a balance of $350 alleged to be due on a stated account; the defendant appeared and answered. In his answer he denied the mate

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rial allegations of the complaint and pleaded counterclaims and offsets. The trial court made findings in which it found that all of the allegations of plaintiff’s complaint are true, and that the denial and allegations in the defendant’s answer are not true. The defendant moved for a new trial, his motion was denied, and thereafter the defendant appealed under section 953a of the Code of Civil Procedure.

In his brief the appellant contends that no account stated was proved, and that the counterclaims set forth in the defendant’s answer should have been allowed. Both of these points involve the sufficiency of the evidence. In the record there is evidence showing that prior to the month of July, 1919, the defendant was an attorney at law practicing his profession and engaged in some other lines of business. That some months prior to that date the plaintiff, an unmarried woman of the age of seventy years, or thereabouts, commenced her dealings with the defendant. She accepted the defendant’s offer to occupy a room attached to the defendant’s offices, and that room she occupied for small housekeeping purposes. From time to time she performed some services for the defendant, such as serving papers, etc. She had some moneys, and at least one piece of real estate. From time to time she loaned to the defendant small sums of money. On one occasion she employed the defendant to negotiate an exchange of her real estate for a piece of property known as the Judd property. The values of the two properties were such that the plaintiff was to pay the difference in value. At the time the transaction was taken up the plaintiff owned some United States bonds of the value of $350. Those bonds she turned over to the defendant to be applied on the exchange of her property for the Judd property. The exchange was never consummated. The plaintiff in her testimony claimed that the deal fell through by reason of nonaction on the part of the defendant. The defendant testified that the deal fell through because the plaintiff changed her mind and would not consummate the deal. On or about July 9, 1919, the defendant had converted the bonds into cash. On the date last stated the plaintiff went to the defendant and asked him for the $350—the proceeds obtained from the sale of the bonds. According to her testimony he said he did not have it at that time, but he would