McLain v. Baker

Gibson, C. This action was to recover of the defendant the sum of $220, received from and to. the use of plaintiff, and for services rendered by plaintiff to defendant, at his request, from about May, 1886, to on or about September 20, 1887, for which defendant agreed to pay the reasonable worth of such services, which were alleged to be reasonably worth the sum of $30 per month.

Defendant, by his answer, denied that he received from plaintiff any greater sum than $124.50, and that the plaintiff- rendered him any services other than from April 20, 1887, to October 20, 1887, which, he avers, were at the agreed price of $15 per month. And as an [530]affirmative defense, that he, defendant, expended for the use of plaintiff, at his request, from December, 1885, to October, 1887, the sum of $437; that at plaintiff’s request, he boarded and pastured three horses for plaintiff, for different periods, which board and pasture were reasonably worth $170; that through the negligence of plaintiff, he, plaintiff, lost a horse worth $50, loaned to him by defendant, for which he agreed to pay the latter sum; that he, defendant, furnished a hay-rack to plaintiff, and rendered certain services to him, at his request, reasonably worth $45.

The action was tried without a jury, and the court found that defendant received $220 which belonged to plaintiff, and returned only the sum of $165 thereof; that during the. years 1886 and 1887 the plaintiff, at request of defendant, performed labor for defendant for a period of sixteen months, reasonably worth $30 per month, amounting in all to the sum of $480; and that all other accounts and demands existing between the parties, and set forth in defendant’s answer, were fully-settled by them prior to the commencement of this action.

J udgment was accordingly entered in favor of plaintiff fomthe sum of $535, and $130.10 costs. From the judgment, and an order denying a new trial, comes this appeal. ^

The only question raised by the appellant is, that the findings are not sustained by the evidence; or in other words, that they are against the weight of evidence.

As was said in Spring V. W. W. v. San Mateo W. W., 64 Cal. 123: “In this court, it is incumbent upon the appellant, on such a contention, to show that in the evidence upon which the findings are based there was no substantial conflict, and that the facts and inferences deducidle from them, as found by the court, were contrary to the evidence.”