Aydelotte

In response to appellant's earnest petition for a rehearing, we deem it sufficient to call attention to the following quotation from the case of McFarland v. Holcomb, 123 Cal. 85 , [ 55 P. 761 ]: "In her complaint she alleges as the basis of her claim 'that William A. Holcomb was at the time of his death indebted to the plaintiff in the sum of seven thousand five hundred dollars as a balance due plaintiff for nursing, boarding, counseling, advising, and taking care of said William M. Holcomb almost continuously from the twenty-ninth day of November, 1870, down to the fourth day of November, 1895, in the City and County of San Francisco, State of California.' " It will thus be seen that the action was for services performed, that there was no allegation that they were performed at the instance or request of Holcomb, or that there was any promise to pay. The supreme court, however, held that the complaint stated a cause of action. If that case is not directly in point here, or if it is to be overruled, the decision to that effect must come from the supreme court. The rehearing is denied. Hart, J., and Chipman, P. J., concurred. A petition to have the cause heard in the supreme…

The action is for the recovery of the value of legal services. The plaintiff had judgment for $955.95, from which and the order denying his motion for a new trial defendant has appealed. Appellant states in his brief that "there are two principal points made on the appeal — first, that the evidence is insufficient to sustain the finding in favor of plaintiff for the sum of $500 on one item (Statement No. 11) contained in the bill of particulars; and, second, that the decision is against law in that the findings do not determine all the material issues of fact." As to the first point, we deem it unnecessary to set out the evidence, but consider it sufficient to say that it does not present a question of law, as there is at least some support for the finding of the trial court. It is claimed, too, that the court below erred in failing to find upon the allegation of the complaint that the services were performed at the instance and request of defendant, and also upon the averment of the answer as to a defect of parties plaintiff, the contention being that the services, if any, were performed by the copartnership of Scrivner Aydelotte. The general rule is that a judgment based…