Heaton-Hobson Associated Law Offices v. Arper

VAN DYKE, J.

This is an appeal from a judgment in favor of defendant for his costs. The appeal is upon the judgment-roll without a statement or bill of exceptions.

The appellant’s point on the appeal is, that the findings are not within any issue of the case.

After alleging the assignment of the claim in suit by Prank W. Sawyer to the plaintiff, and that said Frank W. Sawyer was a duly admitted and licensed attorney at law in this state, the complaint avers that at the city of Oakland, county of Alameda, state of California, the said Frank W. Sawyer, as such attorney at law, at the special instance and request of said defendant, performed services to and for said defendant in various actions and matters, the reasonable value of which was and is the sum of $699, and that the last service performed was within two years of the bringing of the suit; that in the city and county and state aforesaid said Prank W. Sawyer purchased coal-oil of said defendant, and borrowed money of said defendant, all in the sum of $160 and no more; that said account had by and between the said Prank W. Sawyer and said defendant was a mutual, open, and current account, and the balance due from defendant, on account of the same, is the sum of $539, after deducting all just credits and offsets. Wherefore plaintiff demands judgment against said defendant for the sum of $539, the said alleged balance, and costs of suit.

The answer “denies the said defendant is indebted to the said plaintiff in the sum of $699, or in any sum,” and by an amendment added to said answer it is alleged that on the nineteenth day of August, 1898, Prank W. Sawyer, plaintiff’s assignor, was indebted to the defendant in the sum of $16.90 over and above all claims and offsets, and that on said nineteenth day of August and subsequently, and while said Sawyer was so indebted to the defendant, an account was stated between said Sawyer and this defendant, and that upon such statement a balance was found to be due, and was due, from said Sawyer to the defendant, in the sum. of $16.90. The pleadings are unverified.

After preliminary finding in reference to the assignment and that said Frank W. Sawyer was an attorney at law duly

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admitted and licensed, the court finds as follows: “At the city of Oakland, county of Alameda, state of California, said Sawyer, as such attorney, at the request of said defendant, performed services in various actions and matters, the reasonable value of which was and is the sum of $645, and that the last service so performed was within two years next preceding the commencement of this action, and that a portion of said services of and to the value of $600 was performed with the express understanding and agreement that it should be paid out of certain property or a certain fund, after first deducting the amount due said defendant from one Wilson, and that said fund or property has been and is insufficient to pay to said defendant the amount due him from said Wilson; that in the city and county and state aforesaid said Frank W. Sawyer purchased coal-oil of and borrowed money of said defendant, all in the sum of $150, which is now due and payable.