San Francisco Credit Clearing House v. MacGowan — 77 Cal. App. 308

Majority

p. 308

[Civ. No. 5397.

First Appellate District, Division Two.

March 31, 1926.]

SAN FRANCISCO CREDIT CLEARING HOUSE (a Corporation), Appellant, v. R. H. MacGOWAN, Respondent.

Headnote

PI Services — Materials Furnished—'Action to Recover Price — Findings—Judgments—Pleading.—In an action to recover a specified sum for services rendered and materials furnished in the repair of a pump, the plaintiff was entitled to judgment in the amount prayed for on the finding that the defendant promised to pay that sum, without any deduction of the • value of unused materials from the sum sued for, where defendant did not plead a counterclaim or a cross-complaint for damages, and no issue was raised as to the unused materials, and the finding that said materials were not used and that the reasonable value thereof was a certain amount was wholly outside of the case.

(1) 33 O. J., p. 1169, n. 36, p. 1175, n. 83,

p. 309

APPEAL from a judgment of the Superior Court of San Mateo County. George H. Buck, Judge.

Reversed.

The facts are stated in the opinion of the court.

Cross & Brandt for Appellant.

Joseph J. Bullock for Respondent.

Plaintiff sued in assumpsit for $307.20 for services rendered and materials furnished in the repair of a pump at the special instance and request of the defendant. The complaint stated two causes of action—one, an express promise to pay the amount sued for, and the other, that the said sum was the reasonable value of the services and materials. The answer denied both the promise to pay and that said sum was the reasonable value. An amendment to the answer set up the special defense that the plaintiff’s assignor had been called on to repair the same pump on two previous occasions, but that the work had been done in an improper manner, necessitating the work for which the account in suit was rendered.

The trial court found that these allegations of the answer were untrue; that the defendant ordered from plaintiff’s assignor the services and materials and promised to pay therefor the sum of $307.20; that in pursuance of said order the services were rendered and the materials were furnished as alleged in the complaint; and that the reasonable value thereof was the sum of $307.20. The court found further that some of said materials were not used in the repair of the pump, but were left on defendant’s premises, and that the reasonable value of such materials was $190. Judgment was then rendered for plaintiff in the sum of $117.20, the value of the unused materials having been deducted from the sum sued for. The plaintiff appeals on typewritten transcripts.

[1] The single ground of appeal is that the appellant is entitled to judgment in the amount prayed on the finding that the respondent promised to pay that sum. Of this there canont be any doubt. The respondent did not plead a counterclaim, or a cross-complaint for damages. He did not

p. 310

question the account which was rendered him long prior to the commencement of the action and he did not return, or offer to return, the materials which he claimed had not been used. No issue was raised as to these materials and this finding is wholly outside of the case.

The judgment is reversed, with directions to the trial court to enter judgment for the appellant as prayed.

Sturtevant, J., and Langdon, P. J., concurred.