[Civ. No. 821. Second Appellate District.-July 5, 1910.]

GEORGE M. PEARSON, Respondent, v. ELI E. HENDRICK and D. E. MYERS, Appellants.

ACTION FOR REASONABLE VALUE OF SERVICES - - DEFENSE OF SPECIAL CONTRACT-SUPPORT OF FINDINGS.-In an action to recover the reasonable value of work and labor performed by plaintiff as a civil engineer, at defendants' instance and request, in which the answer denied any amount due, and pleaded a special contract in defense, and in which the evidence tends to show that plaintiff rendered such services as engineer to defendants at their request for two hundred days of the fair value of $15 per day; that there was no agreement limiting the cost of the work; that no payments had been made upon those services, and that all payments made were on account of expenses incident to the employment, it is held that such evidence is sufficient to support the findings for the plaintiff, notwithstanding evidence for defendant to the contrary. ID.-OPINION OF PLAINTIFF AS TO VALUE BASED ON PERCENTAGE IMMATERIAL VALUE OF SERVICES OTHERWISE SHOWN.-The findings for plaintiff being established by sufficient evidence, the fact shown by the record that plaintiff founded his opinion as to the value of his services on a percentage basis is immaterial, since if plaintiff's evidence as to the value of his own services be ignored, such value is established for the plaintiff by independent evidence.

ID.-PRESENTATION OF CLAIM FOR SMALLER SUM CLAIM FOR FAIR VALUE NOT PRECLUDED.-Though it is disclosed by the record that when plaintiff first presented his bill it was for a smaller amount, yet this would not preclude plaintiff from asserting a claim for the fair value of the services.

APPEAL from a judgment of the Superior Court of Riverside County, and from an order denying a new trial. F. E. Densmore, Judge.

The facts are stated in the opinion of the court.

Purington & Adair, for Appellants.

Miguel Estudillo, for Respondent.

ALLEN, P. J.-The action was to recover the value of certain work and labor performed and expenses incurred as a civil engineer on behalf of defendants at their special instance and request, the reasonable value of which was alleged

to have been $5,518.55, and a balance unpaid of $2,205.95. The answer denied the performance of the services or their value, and alleged that such services as were performed were under a special contract through which the sum should not exceed $2,500.

Trial was had by the court, findings and judgment in favor of plaintiff, from which judgment, and an order denying a new trial, defendants appeal.

The specifications of error all relate to the insufficiency of the evidence to support the findings. An examination of the record discloses that there is evidence tending to show that plaintiff rendered services as engineer to defendants at their request for a period of two hundred days; that the fair value of such services in the locality was and is fifteen dollars per day; that there was no agreement limiting the cost of the work; that no payment had been made on account of these services, and that all the payments made were on account of expenses incident to the employment. These things being established, it is of no particular materiality that plaintiff himself should have based his opinion of the value of the services upon a percentage basis. Ignoring the plaintiff's testimony entirely as to the value of the services, it is established by independent evidence. It is true that it is disclosed in the record that when plaintiff first presented his bill, it was for a smaller amount. This, however, would not preclude plaintiff from asserting a claim for the fair value of the services. (Lackmann v. Kearney, 142 Cal. 115, [75 Pac. 668], and authorities cited.) In our opinion the findings have ample support, and the judgment and order should not be disturbed. Judgment and order affirmed.

Shaw, J., and Taggart, J., concurred

[Crim. No. 143. Third Appellate District.-July 6, 1910.]

In the Matter of the Application of PATRICK MULHOLLAND for Writ of Habeas Corpus.

HABEAS CORPUS - CONVICTION IN JUSTICE'S COURT APPEAL TO SuPERIOR COURT-DISMISSAL.-Where a petition for a writ of habeas corpus shows a conviction in the justice's court for violation of the act of March 6, 1909 (Stats. 1909, p. 140), prohibiting the mooring and anchoring of house boats in rivers and streams of the state in certain limits, and avers that upon appeal to the superior court the justice's judgment was affirmed, and that the validity of the act was passed upon in the superior court, but shows no application for the writ to the superior court, as required under Rule XXVI of this court, and further shows that the appeal was dismissed by the superior court for want of jurisdiction, without a trial upon the merits, the writ must be denied.

ID.-APPLICATION BASED ON NONEXISTENT FACT.-Where the only fact stated in the petition on which the writ of habeas corpus was orig. inally asked for in this court is that the validity of the act was fully heard and determined in the superior court, but the order made by the superior court shows this not to be the fact, there is no basis for the petition for the writ to this court.

APPLICATION for writ of habeas corpus to the sheriff of Sacramento County.

The facts are stated in the opinion of the court.

W. A. Gett, for Petitioner.

E. C. Washhorst, District Attorney, for Respondent.

THE COURT.-In the above-entitled matter it appears that petitioner was convicted in the justice's court of Sacramento township, Sacramento county, for violating the act of the legislature approved March 6, 1909 (Stats. 1909, p. 140), prohibiting the mooring and anchoring of house boats in rivers and streams of this state within certain limits.

It is averred in the petition for the writ that "the said matter came on for hearing before the superior court of the county of Sacramento, state of California, and after consideration by the same the said judgment of the said justice court was by the said superior court. . . upheld and affirmed."

It appears that no application or petition has been filed by the petitioner for a writ of habeas corpus in the said superior court. It appears also from the order of said court that when said appeal came on to be heard in said court the appeal was dismissed on the ground "that there is no statement on motion for a new trial settled and filed by or with the justice of the peace or filed with this court as required by law, and . . . this court has absolutely no jurisdiction of this appeal." There was, therefore, no hearing upon the merits, and the real question at issue was not before the court, namely, the validity of the act called in question.

Rule XXVI [144 Cal. 1, 78 Pac. xi] provides that the application for the writ shall first be made to the lower court, unless circumstances are set forth in the application, such as the appellate court may deem sufficient to warrant the issuing of the writ originally from the appellate court.

The only fact here shown in the petition, on which the writ is asked for originally by this court, is that the matter was fully heard and determined by the lower court and the validity of the act of the legislature passed upon. The order of the lower court shows this not to be the fact.

The writ is denied.

[Crim. No. 142. Third Appellate District.-July 6, 1910.] In the Matter of the Application of DANIEL E. OSBORNE for Writ of Habeas Corpus.

HABEAS CORPUS-DISAGREEMENT OF COURT-DENIAL OF WRIT.-Where the appellate court, upon an application for a writ of habeas corpus, is unable to concur in a judgment, either for remanding the prisoner or discharging him, the writ must be regarded as denied, under section 4 of article VI of the constitution, as well as upon the authority of Ex parte Oates, 3 Cal. App. xiii, and Ex parte Sauer, 3 Cal. App. 237.

ID. REMAND OF PRISONER TO CUSTODY-ORDER FOR BAIL DISCHARGED.— Upon the return of the prisoner to the custody of the sheriff, or upon his resumption of such custody, the order for bail pending the proceedings must be discharged, and if money was deposited in lieu of bail, it will be ordered to be returned to him by the clerk.

APPLICATION for writ of habeas corpus to the sheriff

of Napa County.

The facts are stated in the opinion of the court.

Theodore A. Bell, for Petitioner.

James A. Nowland, for Respondent.

THE COURT.-The court is unable to concur in a judgment either for remanding the prisoner or discharging him, and, under article VI, section 4, of the constitution, and upon the authority of Ex parte Oates, 2 Cal. App. xiii, [83 Pac. 261], and Ex parte Sauer, 3 Cal. App. 237, [84 Pac. 995], the writ must be regarded as denied, and it is so ordered.

It is further ordered, that upon the return of the prisoner to the custody of the sheriff, or upon his resumption of the custody of the prisoner, the order for bail pending the proceedings be discharged, and, if money was deposited by him in lieu of bail, that it be returned to him by the clerk of the court.

[Civ. No. 860. Second Appellate District.-July 9, 1910.] In the Matter of the Application of MILLS SING for Writ of Prohibition

WRIT OF PROHIBITION PETITION UNDER JUVENILE COURT LAW - PRELIMINARY EXAMINATION-PREMATURE ORDER - SURPLUSAGE QUESTION OF JURISDICTION.-Where a petition for a writ of prohibition to restrain a judge of the superior court from proceeding with a threatened preliminary examination of the petitioner charged with the violation of section 26 of the juvenile court law of 1909 [Stats. 1909, p. 213], shows that the judge indorsed an order of commitment on an affidavit of complaint, sworn to before a deputy county clerk, before any preliminary examination, it is evident that the order so indorsed was premature and without authority, and may be disregarded in determining the alleged want of jurisdiction of the judge to proceed with the preliminary examination as a committing magistrate.

ID.-EXCLUSIVE JURISDICTION OF MISDEMEANORS UNDER LOS ANGELES CHARTER - JURISDICTION UNDER JUVENILE COURT LAW.-Although