Hecker v. Baker

ALLEN, P. J.

The action was one to recover for certain services rendered by plaintiff to defendant. Defendant by his answer denies the performance of the services, their value, or that any services were performed at defendant’s request or for his benefit. Findings and judgment went for defendant, and plaintiff appeals under the alternative method.

Objection is made by respondent to a consideration of the transcript because the notice required by section 953a, Code of Civil Procedure, was not given in time. Whether or not the notice of entry of the judgment was in fact given was a question of fact for determination by the judge to whom the transcript was presented for certification. It is true that the record discloses that the transcript was signed by a judge other than the trial judge, but a stipulation appears in the record to the effect that the transcript should be signed by the presiding judge, and it is so signed. Being signed in the manner agreed upon, and no objection being made at the time to the delay in the notice of the entry of judgment, it must be presumed in support of the record that the question of fact was determined adversely to respondent, and that the presiding judge properly authenticated the transcript as he was authorized to do by the stipulation. It was the duty of respondent, if he desired to object to the authentication of the transcript and have reviewed the action of the court below in relation to the certification, to have presented the matter to this court upon a bill of exceptions, under which only can questions of fact be reviewed. It is not within our province to consider affidavits attached to the record and not embodied in a bill of exceptions.

Considering the appeal, then, upon its merits, we find evidence in the transcript tending to show that defendant, the owner of certain premises, proposed to plaintiff to engage with

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him in business as occupants of such premises, defendant to fit up the premises in a proper manner and when ready for business defendant to be allowed a rent for the room and fixtures. The stock was to be bought on. joint account, and the profits, after payment of expenses, to be divided. This plaintiff agreed to, on the condition, however, that he was to be permitted to purchase all furniture and fittings, for the rea- - son that he could buy cheaper than another by reason of already being in the business. The parties had various consultations over the purchases during the progress of fitting up the room, a part of which furniture consisted of an expensive soda fountain purchased by plaintiff and paid for by defendant. After the room was fitted for business, plaintiff declined to enter into the joint possession of the premises, upon the plea that it would interfere with an established business then being conducted by him. He, however, when defendant remonstrated with him upon his failure to carry out his original plan, suggested that he would gladly show defendant, or those in his employ, how to conduct the business, and would give him the directions as to the preparation of certain articles designed for sale in the business. Plaintiff did give some instructions in the preparation of certain articles for the market and made occasional visits to the place, but it is obvious, if the trial court accepted as true the statements of defendant and his witnesses, that such services were rendered without any intent on plaintiff’s part to charge a compensation therefor ; in fact, there is to be found in the record declarations of plaintiff to that effect. The circumstances surrounding the parties when the various services were rendered, together with the evidence in the record in connection with their performance, we think, clearly justifies the court in finding the same to have been gratuitous upon the part of plaintiff, and that the settlement had between the parties was intended to be and was a full and final adjustment of all differences between them.