MacMurtry

The trial court awarded a judgment in favor of the plaintiff against the defendant and from that judgment the defendant has appealed under section 953a of the Code of Civil Procedure.

The first point made by the defendant is that the trial court made a finding which is not sustained by the evidence. The contention is correct, but it is of no benefit to the defendant, as will appear from a consideration of the following matters:

The charging part of the complaint is that the defendant was indebted “to the plaintiff in the sum of one thousand seventy-six ($1076) dollars, on an account for moneys lent by the plaintiff to said defendant and for money paid, laid out and expended by the said plaintiff to and for the use of said defendant at his request.” To that complaint a demurrer of the defendant pleaded only that the complaint was insufficient. The complaint was not insufficient. It commingled (1) a. cause of action for money lent, and (2) a cause of action for money paid, etc. After the action had been tried the trial court made findings in which it found that each and all of the allegations in plaintiff’s complaint contained are true. Conceding that there was no evidence…