Wood v. Mesmer

CONREY, P. J.

Action to recover upon an account for services rendered and materials furnished by the plaintiffs to the defendant at his special instance and request. There was a counterclaim by the defendant. Judgment was entered in favor of the plaintiffs for $490.44, balance found due to plaintiffs, with interest and costs. The counterclaim was in part on a demand for rent and in part for damages for breach of contract.

As is far too common in the briefs which come to this court, the points made by appellant in support of his appeal are not presented definitely and in regular order. They are scattered through the argument, so that there is imposed upon the court the unnecessary labor of searching them out and numbering them before they can be stated in appropriate order. Under such circumstances, if the court should fail to notice any point intended to be made, the omission would easily be justified.

[259]

Appellant contends that the findings do not sustain the judgment. His claim seems to be that certain of the findings are wholly conclusions of law and omit to find upon the ultimate facts. There is no merit in this claim. The seventh cause of action stated in the complaint declares upon an open book account for an amount covering plaintiff’s entire demand. The previous causes of action are separate statements of account on which it is alleged that defendant became indebted to plaintiffs for work and labor performed, materials furnished and moneys paid out for defendant at his special instance and request. The findings respond directly to these allegations as contained in the seventh cause of action and in each of the others. They likewise respond directly to the affirmative allegations of the answer.

[1]

In an action of this kind a finding by the court that the defendant did become indebted to the plaintiff in a stated sum upon an open book account, or that the defendant became indebted to the plaintiff for work and labor performed, materials furnished, etc., at or within a stated pediod of time, is a finding of fact and not a mere conclusion of law. Appellant cites no authority in support of his stated theory.

Between the twenty-fourth day of November, 1915, and the first day of January, 1916, the plaintiffs occupied certain premises of the defendant in the city of Los Angeles and used a printing plant of the defendant therein under an agreement to pay rent therefor. The defendant was the owner and publisher of two weekly newspapers. It was a part of the contract that the plaintiffs would print these newspapers for the defendant and receive compensation therefor. The principal part of plaintiffs’ cause of action is for recovery of that compensation.