E. W. McLellan Co. v. E. San Mateo Land Co.

THE COURT.

The action was brought by plaintiff, as assignee of E. W. McLellan, against East San Mateo Land Company, a corporation, to recover $10,727.19, alleged to be due on an account stated. The complaint was in two counts, the first alleging in paragraph III that an account had been stated between McLellan and the Land Company at the city and county of San Francisco, the second alleging, likewise in its paragraph numbered III, that the account had been stated at the county of San Mateo. The defendant answered, denying the stating of any account. The cause was tried without a jury, and the court made findings and rendered judgment in favor of the defendant. The plaintiff moved for a new trial, and now appeals from the order denying his motion.

McLellan, plaintiff’s assignor, was a contractor. The defendant was engaged in subdividing a tract of land in San Mateo for purposes of sales. McLellan had made two contracts with the defendant for grading streets and doing other work on the tract, and claimed that the defendant was indebted to him for labor and materials furnished under the contracts. W. H. Obear was the president and general manager of the defendant corporation. A meeting took place between McLellan and Obear at San Mateo, at which, as Mc-Lellan claimed, an account was stated, and the sum sued for agreed to be due from the defendant to McLellan. Shortly thereafter, there was a second meeting at San Francisco, Mc-Lellan and Hankins, his attorney, called upon Obear, and there was, according to their testimony, a second agreement to the effect that $10,727.19 was due from East San Mateo Land Company to McLellan.

The finding of the court was in these words: “That no account was stated between the assignor of plaintiff and the defendant as set forth in paragraph III of the first and second causes of action herein or at all, and in this behalf the court finds that at the times and places stated in paragraphs III of the first and second causes of action herein there was an account stated between E. W. McLellan the assignor of plain

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tiff herein and W. H. Obear the president and manager of defendant herein.”

The finding that no account was stated between McLellan and the defendant is assailed as unsupported by the evidence.