Bell v. Adams

SHAW, J.

This case was transferred to the district court of appeal of the second district, and that court being unable to agree upon a decision, it was again transferred to this court. The following opinion prepared by Mr. Justice Allen of that court meets with our approval, and is adopted as the opinion of this court:—

“Appeal by defendant Samuel B. Adams from a money judgment rendered against him alone in favor of the plaintiff.

“The complaint alleges a contract between plaintiff and defendants, by which plaintiff was to manage and operate certain mines belonging to the defendants, for which services defendants agreed to pay the reasonable value thereof, which is alleged to be four thousand dollars, whenever the defendants sold the mines. It is further alleged that within a year preceding the bringing of the action defendants sold said mines. Non-payment of such claim for services is alleged. Service of process does not appear from the record to have been made upon any of the defendants. Defendant Adams, however, appeared and answered separately, denying the contract as set out, and denying that he ever agreed to pay for such services, or that such services were ever rendered, or that the same were of the value alleged, or any value in excess of seven hundred and ten dollars, which amount is claimed to have been paid; admits the sale of the mines as alleged. A plea of the statute of limitations is also interposed.

“The trial court found that the contract set out was entered into between plaintiff and defendant Adams, and that Adams agreed to pay therefor the reasonable value of the services rendered, when the mines were sold; that the same were rendered as alleged in the complaint, and were of the value of four thousand dollars; and that said Adams had paid no part thereof. Judgment was rendered accordingly.

“The principal point relied upon by the appellant is that the action being against all defendants jointly, the findings do not respond to the case made by the pleadings, in that they do not find as to the making of a contract, or the per

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formance oí services, or non-payment as alleged; nor is there any finding upon the issue of the statute of limitations. The joint ownership by defendants of the mines, their sale, and the agreement of defendants to pay for the services of the plaintiff are not denied; the denial in the last regard being merely that Adams did not agree to pay therefor. The contract set out in the complaint was joint and several. (Civ.' Code, see. 1659.) Section 414 of the Code of Civil Procedure provides that when the action is against two or more defendants, jointly or severally liable on a contract, and the summons is served on one or more, but not on all of them, the plaintiff may proceed to judgment against the defendant served, etc. No objection appears from the record to have been made in the court below to proceeding with the trial as against the answering defendant alone; and under section 579 of the Code of Civil Procedure the court was authorized to render judgment.