Graham v. Harmon

Gibson, C. Judgment passed for the respondent in this action for $219.77, without costs, which sum consists of $12.10 for services rendered by him to defendants, between the seventeenth and twenty-eighth days of December, 1886, and the remainder for a balance due upon an account between them.

The main question presented for consideration here is, whether the findings of fact are supported by the evidence.

The defendants, who were engaged in the business of [182]conducting a theater and skating-rink in Eureka, .during November and December, 1886, employed' the plaintiff as their manager, whose duty it was to sell tickets of admission to the entertainments and performances given by the defendants, and to pay all the expenses thereof.

Before the trial, defendants, under section 454 of the Code of Civil Procedure, demanded of and obtained from plaintiff a copy of the account sued upon, which showed that he had received $1,250.78, and paid out $1,797.63, being $546.85 more than he received.

Among the items charged to the defendants is one for thirty-two dollars for eight days’ services, at four dollars per day, rendered by plaintiff to defendants. These services were declared upon as a separate cause of action in the complaint; to which defendants replied in their answer by denying that such services were worth any greater sum than one dollar and fifty cents per day; and averred that plaintiff agreed with them that in consideration of the exclusive privilege of maintaining a stand in their theater for the sale of cigars, etc., he would render the services for which he seeks compensation in money. On the trial, plaintiff testified that he made no such agreement with the defendants; that he did not have a stand in the theater while he was a manager, but only for a few nights, long prior to his engagement as manager; that there was no understanding or agreement respecting the amount he should receive for his services as manager, but that from four to five dollars per day therefor would be reasonable. That portion of plaintiff’s testimony in which he denies the agreement respecting the privilege of selling cigars, etc., in the theater, was contradicted by defendant Harmon and one of his actresses, who testified that the only compensation he was to receive for his services was the privilege referred to. On this point the court found against the defendants, and in favor of plaintiff, to the extent of $1.50 per day for eight days, as stated in the answer.