ESTUDILLO v. AGUIRRE, 2 Cal. Unrep. 420

By the COURT. The appeal is by plaintiff from an order granting a new trial. The promissory note sued on herein was given in part for five hundred dollars, which plaintiff informed defendant had been allowed him by the probate court for his services as guardian of defendant. The plaintiff had been informed by his attorney that five hundred dollars had been so allowed for his services, and believed his informant; but, in fact, the probate court had not made such allowance.

At the trial in the court below of the action now here, the court, notwithstanding defendant’s objection that the same was irrelevant, immaterial, and incompetent, admitted evidence tending to prove the character, nature, and extent of plaintiff’s services as guardian, and what his services were reasonably worth. The defendant duly excepted to the ruling. The note was given in part for a definite sum, which was represented to have been fixed, determined, and allowed by the probate court.

There was no settlement between plaintiff and defendant at which five hundred dollars was agreed upon as a proper compensation for plaintiff’s services as guardian. The note was given on the representation (innocently made) that the probate court had made the allowance. As the allowance had not been made, the consideration of the note failed to the extent of five hundred dollars. We think the court properly granted the new trial. Order affirmed.