JOHN FLANIGAN, Respondent, v. J. T. DAVIS, Appellant, 1 Cal. Unrep. 876

RHODES. J. — Action to recover the value of services rendered by the plaintiff, at the instance and request of the defendant, in feeding a threshing machine. There is no question as to the performance of the services and their value. But upon the issue as to whether the services were performed at the instance and request of the defendant or of B. J. Smith, the evidence is contradictory, and in the clearest sense conflicting. The court below gave the greater credit to the statements of the plaintiff and ordered judgment in his favor.

If the services were in fact rendered at the instance and request of the defendant, and the court found that the defendant did hire the plaintiff to perform the services, then the liability of the defendant is primary, and there is no room for the question as to whether there was a sufficient compliance with the statute of frauds to hold the defendant liable for the debt of B. J. Smith. Judgment and order affirmed. Remittitur forthwith. We concur: Crockett, J.; McKinstry, J.