McVicker v. McKenzie

SMITH, C.

This suit was brought to recover money alleged to be due on four separate causes of action, set up in as many counts,—the first two on promissory notes; the third for money expended for the use of the defendant; the fourth for personal services, extending over a period of a little oyer two years and a half, and of the alleged value of two thousand dollars. On the first two counts of the complaint the court

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finds for the plaintiff, and that the aggregate amount due him was $1,444.50. On the third the finding is, that the plaintiff had expended for the use of the defendant the sum of $6,412.82, but that he had received on account of the defendant the sum of $8,000.18, thus leaving a balance in favor of the latter of $1,595.36. On the fourth count the finding is for the plaintiff in the sum of $300. And, as conclusion of law, it is found that’ defendant is indebted to plaintiff on the whole account in the sum of $158.50, for which judgment was entered. The plaintiff, being dissatisfied with this, moved for a new trial, and now appeals from an order denying the motion.

There were some errors to the disadvantage of plaintiff in the computation of interest on the notes sued upon, but these were more than compensated by error of computation against the defendant in estimating the balance due him on the third cause of action, and therefore need not be considered. The only cause of action to be considered, therefore, is the fourth; and with reference to this the only question involved is as to the validity of the contract under which the services sued for were rendered.

The only evidence on this point is that of the plaintiff, which is not contradicted. From this it appears that in May, 1896, the defendant was assignee in insolvency of George Straut, the owner of land known as the Straut Ranch,—which, with farming implements and other personal property, had been advertised for sale by the defendant as assignee; and that the defendant employed the plaintiff “to bid in the said ranch and personal property for him, defendant,” and agreed “that he would pay him well for his trouble, and would pay him fifty dollars per month for his time in superintending and managing the property until such time as he, defendant, could take the management himself.” In pursuance of this arrangement the property was sold and conveyed to the plaintiff by the defendant, and shortly afterwards transferred by the former to the latter. The defendant also took charge of 'the ranch under the agreement, and remained in charge for the time alleged in the complaint; so that it appears that at the agreed rate of fifty dollars per month there would be due him the aggregate sum of $1,543.33, against which is to be charged the difference of $1,595.36 between receipts and