Brooks v. Ardizzone , 9 Cal. App. 215 ( 1908 )

Appeal by plaintiff from an order denying a new trial. The action was one to recover attorney's fees on account of services alleged to have been rendered by plaintiff to defendants within two years preceding the filing of the complaint. The answer is a general denial. The court found that plaintiff performed no services of any kind for defendants within the time specified and that no sum was due or payable to plaintiff on account thereof; that no services were rendered Steven Ardizzone by plaintiff within such time for which payment had not been made in full. There was no appeal from the judgment perfected within proper time, and the only matter which can be considered under the record relates to the sufficiency of the evidence to support the findings. There is a decided conflict in the evidence, but the trial court, having before it the witnesses, determined all of the issues in defendants' favor, and there is some testimony going to support the finding that as to all of the defendants other than Steven Ardizzone no employment of plaintiff ever existed, and no one having authority from them, or either of them, ever requested services to be performed in their behalf, and that no services were in fact rendered to them or either of them by plaintiff. As to Steven Ardizzone, the evidence is uncontradicted that certain services were rendered him by plaintiff within the time mentioned, but he testifies, and the court seems to have accepted his statement as true, that for all such services performed by plaintiff he made payment to plaintiff in full. While no plea of payment is presented by the answer, the right to prove the same exists in this state where the general issue only is tendered. (Wetmore v. San Francisco,44 Cal. 300.)

The order denying a new trial must, therefore, be affirmed; and it is so ordered.

Shaw, J., and Taggart, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on December 8, 1908.