Hummel v. Muller

BARNARD, J.

Under an arrangement made by their respective managers, the plaintiff operated a welding shop in a machine-shop run by defendants at Huntington Beach, California. The arrangement was never reduced to writing, but the defendants were to deduct a percentage from the bills for work done by the welding company, and pay the balance to the plaintiff. After some months of operation, plaintiff sued defendants for the value of labor and materials done and furnished. Judgment was for the plaintiff and defendants have appealed.

Appellants first contend that the respondent failed to prove that she was doing business as the Placentia Welding Company at the times mentioned in the complaint. They argue that two parties, other than the1 plaintiff, were the real copartners in the Placentia Welding Company, at the time involved, basing this claim upon statements set forth in an affidavit filed in support of a motion for a new trial. The contention is utterly without merit. Aside from the impossibility of considering such evidence, under the circumstances, there was no failure of proof in this regard. It was stipulated at the trial that the respondent “is doing business under this name and has filed a certificate and due affidavit of publication.” The record shows no .contradiction of the testimony of the manager for respondent that he was such manager; that he had authority to act for the company; that he made the arrangement in question; and that the Placentia Welding Company performed the work and services involved in this action. And during the progress of the trial it was stipulated that an audit of the work done, after deducting all of the credits, left a balance of $7,781.04 due from the defendants

to the plaintiff.

It was further agreed by the parties that the above stipulation did not take into consideration whether defendants were entitled to an additional five per cent, as claimed, or whether, under the agreement, it was incumbent upon plaintiff to wait for her money until the same had been collected by the defendants from the customers. The court proceeded to hear evidence upon these two questions, and resolved them both in favor of plaintiff. Appellants urge that

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the evidence is insufficient to support the findings of the court upon these two points. In effect they argue that the preponderance of the evidence is the other way. But the manager of the plaintiff company testified positively that no additional five per cent was agreed upon, and that the agreement was that the amount of the bills should be paid on the first of each month. Defendant A. R. Muller testified that on one occasion he used $5,000 of a larger sum borrowed from the bank to pay a portion of respondent’s account, although corresponding bills had not then been collected from the customers. The findings are amply sustained by the evidence, and the matters called to our attention by appellants create, at best, no more than a conflict in the evidence.