Scott

I concur in the judgment of reversal, but on the sole ground that the court erred in refusing to permit testimony of the witness Wood as to Hobart’s state of mind on the days just previous to and just preceding the day of the conversation with Scott. (See Estate of Toomes, 54 Cal. 516 , and cases there cited.) The above is the only error I can find in the record.

This action was brought to recover under a contract between the plaintiff and the firm of Hobart, Wood & Co. for services as salesman. Pending the action Hobart died, and the case was continued against Wood as surviving partner. The plaintiff had a verdict, and the defendant Wood appeals from the judgment, and from an order denying a new trial.

The respondent makes a preliminary objection to the record on appeal from the order denying a new trial, upon the ground that it does not show a notice of intention. This objection must be disallowed upon the authority of Pico v. Cohn, 78 Cal. 384 , which overrules the cases relied upon. Besides this, the points made can be considered on appeal from the judgment, and the statement used on the motion for a new trial is a record on appeal from the judgment. (Code Civ. Proc., sec. 950; Craig v. Fry, 68 Cal. 364 .) There are several errors which require a reversal of the judgment.

1. The recovery sought was for services which continued for several years. The complaint alleges that “on or about the third day of July, 1869, at the city and county of San Francisco, said defendants employed plaintiff as a salesman, and agreed to pay plaintiff for…

We dissent. The two instructions quoted by Commissioner Hayne may have been technically inaccurate, but as applied to the point in controversy in this case, and as they must have been understood by the jury, they were scarcely erroneous, certainly not injurious.

It was agreed that plaintiff commenced work at $250 per month, and that he continued in his employment right along. In the absence of any evidence to the contrary, the presumption certainly would be that the rate of wages continued as it began. And if the evidence as to a reduction of the rate while the employment continued was exactly in equilibrio, the finding should have been against such change.

This was all the instructions could have been understood to mean, and in this sense they were not erroneous.

The judgment and order appealed from should be affirmed.