O'Brien

The plaintiff brought this action to recover the sum of $500, alleged to be due him from the defendant, on an account stated, for services performed in the capacity of superintendent of the mining operations of the corporation.

The answer, after denying the alleged indebtedness, sets up as a special defense the bar of the statute of limitations (Code Civ. Proc., see. 339), and also the further defense that, by reason of the alleged carelessness and negligence of the plaintiff as superintendent of defendant’s properties, the latter suffered the loss, through robbery, of the product of a pocket of gold found in defendant’s mine, of the alleged value of more than $3,000, and that defendant had therefore sustained damages in the sum of $3,000 because of such alleged carelessness and culpable negligence of plaintiff.

The last-mentioned defense was not pressed at the trial, no evidence having been offered in its support, and therefore further consideration of the same may be dismissed.

The cause was tried by the court, a jury having been waived by both parties, and judgment awarded the plaintiff for the Bum sued for.

This appeal is from the judgment and order denying the defendant a…