Budd v. Hough

THE COURT.

This is an appeal by plaintiff from an order denying his motion to vacate the judgment and

[105]

enter a different one upon the ground that the conclusions of law were incorrect, erroneous, and not consistent with nor supported by the findings of fact. No appeal was taken from the judgment, and consequently in that state of the record none of the facts of the case can be considered on this appeal except those embraced in the findings. (Wester

velt

v.

McCullough,

68 Cal. App. 198 [228 Pac. 734].)

The action was one by plaintiff as assignee of C. A. Ricks to recover $1875 claimed to be due as real estate commissions. The complaint contained three causes of action. The first was based on a

quantum merwit,

the second on an express contract to pay the sum .above mentioned, and the third on an account stated. The trial court found that defendants were indebted to Ricks in the sum of $875 less the sum of $500 which it found was due from Rieles to defendants, and judgment was entered in plaintiff’s favor for the net sum of $375. With reference to the first and second causes of action, the court found that defendants became indebted to Ricks for work, labor and services performed, which was of the reasonable value of $875, and that defendants agreed to pay him that amount. And with reference to the third cause of action it found that there was no account stated “whereby it was ascertained and agreed that defendants were indebted to said C. A. Ricks in the sum of $1875, but it is true that on each March 31, 1927, and on May 1, 1927, C. A. Ricks sent to defendants, regularly, through the United States mails, a statement setting forth that there was due him for services rendered from the defendants the sum of $1875; it is true that the defendants received each of said statements, and that they at no time communicated with said C. A. Ricks to the effect that said statements were inaccurate or not correct.’’

Plaintiff contends that the specific facts found in the latter part of the foregoing findings nullified the preceding negative finding that there was no account stated, and were sufficient in themselves to establish an account stated; and that consequently he was entitled to judgment for the full amount stated in said account. However, it appears from other facts found by the court that Ricks’ claim for commissions was based upon two written agreements, in printed form, entered into by defendants with a firm named Alder and Clark for the exchange of defendants’ property, and