Allen v. Ellis — 79 Cal. App. 611

Majority

p. 611

[Civ. No. 4496.

Second Appellate District, Division One.

November 4, 1926.]

JAMES L. ALLEN, Respondent, v. CHARLES ELLIS, Appellant.

Headnote

[1] Account Stated—Findings — Evidence—Fbivolous Appeal.—In this action to recover on an outstanding account of plaintiff against defendant for services rendered, there having been direct and substantial evidence- to the facts that there rvas an account stated, and that defendant agreed to pay the same, the trial court’s findings accordingly were conclusive on appeal, notwithstanding there was opposing testimony relating, to those issues; and it appearing that the appeal was made for delay, the judgment was affirmed and respondent (plaintiff) was awarded damages in addition to the costs of appeal.

(1) 1 C. J., p. 728, n. 94; 4 C. J., p. 884, n. 37; 15 0. J., p. 281, n. 9, p. 283, n. 19.

1. See 1 Cal. Jur. 217.

APPEAL from a judgment of the Superior Court of Imperial County. M. W. Coupling, Judge.

Affirmed.

The facts are stated in the opinion of the court.

E. R. Simon and Harry B. Ellison for Appellant.

James L. Allen, in pro. per., for Respondent.

There was an outstanding account of plaintiff against the defendant for services rendered. • 'Plaintiff testified that he had rendered a statement showing a balance due in the sum of $1,409.46; that the defendant brought the account to him and claimed that the amount was too large; that the plaintiff then offered to reduce the amount to .$1,35.0;.that the defendant then said: “All right., we will settle”; that thereupon the defendant, gave plaintiff a check for- $500, which .was ■ credited on the statement of account, and at the same time gave credit for $59.46; that the defendant said: “I will pay you the balance in two or three weeks. ’ ’

p. 612

[1] The only point raised by the appeal is that the evidence is. insufficient to support the court’s finding that there was an account stated, and that the defendant agreed to pay the same. In view of the fact that there is direct and sufficient evidence of these facts, the finding must be sustained, notwithstanding that there was opposing testimony of the defendant and others relating to those issues.

It appearing that the appeal was made for delay, the judgment is affirmed, and it is ordered that respondent recover from appellant the sum of $50 damages in addition to the costs of appeal.

Houser, J., and York, J., concurred.