Kirk

Plaintiff below, respondent’s testate, an attorney at law, was employed by defendant below and one B. F. Culley to perform legal services for said parties in connection with certain criminal charges filed against them. At the time of employment defendant and said Culley each paid plaintiff a fee of $350, but later, and prior to dismissal of the charges against them, they dispensed with his services, whereupon he brought this action to recover from defendant an alleged balance of $1,000 due him under his contract of employment and brought a like action against said Culley for recovery of the same sum. The pleadings in the two actions are practically identical and in the court below said actions were consolidated and heard on the same evidence. (Kirk v. Culley, ante, p. 501 [ 261 Pac. 994 ].)

At the conclusion of plaintiff’s case defendant moved for a nonsuit upon the ground of material variance between the evidence adduced and the cause of action pleaded. This motion was denied. Some evidence was later introduced by defendant, but nothing appeared to change the facts upon which the claim of variance was predicated. Judgment was rendered in favor of plaintiff in both cases, and…