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Newbury v. Lineberger

45 Cal. App. 556 Court Second Appellate District, Division One. Decision date 1920-01-26 Docket Civ. No. 2477 English

Delivered by CONREY, P. J.

Contents

Majority

p. 556
[Civ. No. 2477.
Second Appellate District, Division One.
January 26, 1920.]
E. C. NEWBURY et al., Copartners, etc., Respondents, v. W. L. LINEBERGER et al., Appellants.

Headnote

[1] Appeal—-Bill op Exceptions—Insufficiency of Evidence—Absence of Specification—Review op Bindings.—Where the bill of exceptions on appeal from the judgment of the trial court contains the evidence received at the trial, but the record contains no specification of any kind directed to insufficiency of the evidence to support the findings, no question of sufficiency of the evidence to sustain the findings can be considered.
[2J Broker’s Commissions—Reasonable Value op Services—Failure to Object to Evidence—Findings—Variance.—In this action to recover the amount of a commission alleged to be" due for services rendered in procuring a tenant to whom the defendants made a ' lease of real property, the defendants were not misled in any way, nor did any miscarriage of justice result from the judgment of the trial court in favor of the plaintiffs based on its finding as to the reasonable value of the services rendered by them under their contract of employment, the court having further found that the defendants did not expressly agree to pay the amount sued for, as alleged in the complaint, and such finding establishing the reasonable value of the services performed having been based upon evidence introduced at the trial, to which evidence no objection was made.
p. 557
APPEAL from a judgment of the Superior Court of Los Angeles County. Fred H. Taft, Judge. Affirmed.
The facts are stated in the opinion of the court.
John E. Daly and James H. Daly for Appellants.
Eugene C. Campbell for Respondents.

Action to recover the amount of a commission, alleged to be due on a contract to pay for services rendered by the plaintiffs in procuring for the defendants a tenant to whom the defendants made a lease of real property.

With one exception, all of the points urged by appellants consist of claims that the evidence is insufficient to support certain findings of fact'. [1] The bill of exceptions contains the evidence received at the trial, but the record contains no specification of any kind directed to insufficiency of the evidence to support the findings. This being so, no question of sufficiency of the evidence to sustain the findings can be considered on this appeal. (Regoli v. Stevenson, 179 Cal. 257 , [ 176 Pac. 158 ]; Carter v. Canty, 181 Cal. 749 , [ 186 Pac. 346 ].)

[2] Appellants further contend that the complaint counts upon an express agreement for the payment of a specified sum; that the findings of fact negative the allegation of an agreement to pay that amount; and that the court’s finding that the amount awarded is a reasonable sum for the services rendered is not responsive to any allegation contained in the complaint; for which reasons appellants claim that the judgment should be reversed. The complaint, in addition to alleging an agreement to pay a specified sum of $1,116, averred that such sum of $1,116 is the reasonable value of the services rendered. The court, besides finding that the defendants did not expressly agree to pay the stated sum, further found that the sum of $792 is the reasonable value of the services performed under the contract by which it is found that the defendants did employ the plaintiffs to perform said services. This finding establishing the reasonable value of the services performed is based upon evidence introduced at the trial, to

p. 558
which evidence it does not appear that any objection was made. It cannot be seen that the defendants were misled in any way, or that any miscarriage of justice has resulted from the judgment rendered.

The judgment is affirmed.

Shaw, J., and James, J., concurred.

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