Harlan

The appeal is on the judgment-roll from a judgment against Dennie May Lambert for the sum of $500: A reversal is sought upon the sole ground that the court failed to find upon the issue of payment. The action was brought to recover the reasonable value of legal services performed by plaintiff for appellant at her special instance and request. The court found that the value of the services was $650, but it is the contention of appellant that as to nonpayment the court found simply that $150 had been paid and that there is no finding that the remainder of the sum had not been paid.

It will not be disputed that it was necessary to allege the nonpayment of the claim, and, since it was put in issue by the answer, that it was equally necessary to prove it. (Wise v. Hogan, 77 Cal. 184 , [ 19 Pac. 278 ] ; Richards v. Lake View Land Co., 115 Cal. 642 , [ 47 Pac. 683 ]; Dodge v. Kimball, 121 Cal. 580 , [ 54 Pac. 94 ] ; Knox v. Buckman, 139 Cal. 599 , [ 73 Pac. 428 ].) Since findings were not waived, it would, of course, follow, in order to support the judgment, that it should be found by the court that the money had not been paid.

The basis for appellant’s argument is found in the…