premiums, cartage and storage and freight, amounting to $578.08 (and the court so found), and that he is entitled to have such sum deducted from the value of the oakum delivered. We cannot consider the question under the findings in this record. The court has found the actual value of the oakum, and whether it found correctly or not is not now open to question. We must consider the findings with the view of supporting the judgment if possible, and reject all surplusage or trivial inconsistencies. There being no specification of insufficiency of the evidence to support the finding as to the value and no evidence brought here, we cannot consider the question. It is consistent with the finding of the court to conclude that the defendant kept the oakum much longer than he should have done before selling it, and thus incurred the expense of storage, premiums and cartage. The findings show that the defendant sold the oakum. They show and state that the value of the oakum at the time it was delivered to defendant was $1332.57.

It follows that the judgment must be affirmed, and it is so ordered.

We concur:

HALL, J.

KERRIGAN, J.

COOPER, P. J.

Civil No. 641. First Appellate District. September 10, 1909. IDA ROSENOW, Plaintiff and Respondent, v. LOUIS WIENER, Defendant and Appellant.

ACTION ON CONTRACT-PERSONAL SERVICES-VALUE-ABSENCE OF DEFINITE AGREEMENT-TESTIMONY OF PLAINTIFF NONSUIT PROPERLY DENIED.-Where in an action for the reasonable value of services it appears from the testimony of the plaintiff that she performed such services at the request of the defendant, and that although there was no understanding as to the amount of her compensation, she thought he would pay what was right. having formerly worked for him in a similar capacity, and that he promised so to pay, a motion for a nonsuit is properly denied.

ID.-ID. REASONABLE VALUE--FINDING-LESSER AMOUNT THAN UNCONTRADICTED EVIDENCE-DEFENDANT WITHOUT INJURY.-The defendant in such an action cannot complain of a finding of the reasonable value of such services in a less amount than would have been warranted by the uncontradicted testimony of the plaintiff.

Appeal from the Superior Court of the City and County of San Francisco Jas. M. Troutt, Judge.

For Appellant-Louis P. Boardman.

For Respondent-Edwin T. McMurray.

This is an appeal by defendant from the judgment and from the order denying his motion for a new trial. The action was to recover the reasonable value of services rendered to him by plaintiff as a bookkeeper and saleswoman.

The findings of the court are as follows:

"1. That on the 11th day of December, 1906, said plaintiff entered defendant's service at his request, and continued in said service at his request until the 11th day of June, 1907. That during

said time plaintiff performed various duties for defendant at his request and rendered service to defendant in and about his business, in the City and County of San Francisco, as book-keeper, sales-lady and general clerk. That said plaintiff was engaged in the service of defendant as aforesaid for six months, to wit, from the 11th day of December, 1906, to the 11th day of June, 1907; that during said period plaintiff devoted eight or nine hours a day to defendant's service and occupied a position of confidence and responsibility.

"2. That no definite agreement was had between said parties as to the compensation which plaintiff was to receive for her said service, and no agreement was had between said parties that said service was to be rendered gratuitously.

"3. That the reasonable value of the said services rendered by plaintiff as aforesaid for the said six months is the sum of $322.50, or the sum of $53.75 per month."

Upon these findings the court rendered judgment for plaintiff in the sum of $300 and costs (there being an offset amounting to the balance of $22.50).

The appellant makes two points: (1) That his motion for a nonsuit should have been granted; and (2) That the evidence is insufficient to sustain the decision of the court.

The plaintiff testified that at the request of the defendant she performed services for him as clerk, bookkeeper and saleswoman in his store for some six months, and goes at some length into detail as to those services. She testified that there was no understanding between them as to the amount of her compensation, but that she had previously worked for the defendant in a similar capacity, and thought that he would pay her what was right; that she had during her employment spoken to the defendant about her pay, and had been put off by him because he was short of money, but that he promised to pay her later. She also gave testimony as to the value of her services.

In view of this testimony we think the motion for a nonsuit was properly denied.

On the second point, viz.: that the evidence is insufficient to sustain the decision of the court, appellant's principal argument is directed to the fact that the only evidence of the value of the services of plaintiff is her own testimony that she considered her services were well worth $15 a week, and objects that upon this evidence the court found that her services were worth the sum of $53.75 per month.

There is no reason why the plaintiff should not give testimony as to the value of her services; and if defendant was dissatisfied therewith he could have introduced testimony upon the same point; but he neglected to do so, and the plaintiff's evidence stands uncontradicted. It is easy to calculate the value of a month's service when a weekly rate is given; and if the court found a less amount than would have been warranted by the uncontradicted testimony the appellant was not injured thereby, and carnot complain of the finding.

On the same point-the insufficiency of the evidence to sustain the findings of the court, the appellant calls attention to some

evidence that the plaintiff was, during the period covered by the services forming the basis of this action, employed by a corporation (of which the defendant was president) in another and different capacity, and argues that the two employments were incompatible. and rendered unlikely the one now under consideration. But the evidence discloses that the services rendered under this additional employment were performed principally during the evening, and did not unduly interfere with her duties under her employment by the defendant.

Upon a careful reading of the record we think the findings are amply supported by the evidence, and that the motion for a new trial was properly denied.

The judgment and order are affirmed.

We concur:

HALL, J.

COOPER, P. J.

KERRIGAN, J.

Civil No. 607. Third Appellate District. September 9, 1909. RICHARD BRADLEY, Administrator of the Estate of James A. Bradley, Deceased, Plaintiff and Appellant, v. E. E. BUSH, Defendant and Respondent.

ACTION ON PROMISSORY NOTES-PAYEE AS INDORSER-INDOKSEMENT FOR BENEFIT OF MAKER--DELIVERY TO PLAINTIFF'S INTESTATE AS AGENT -FINDINGS SUPPORTED BY EVIDENCE.-It is held in this action by an administrator against the payee of notes as an indorser thereof, that the evidence supports the finding that such notes were indorsed, and thereafter delivered to plaintiff's intestate as the agent of the maker for the purpose of cancellation so as to reduce the indebtedness owing by the maker and not for the purpose of vesting title or ownership in such intestate, who was to hold the same as evidences of debt secured by mortgage in consideration of advances to be made to the maker.

ID.—ID.—ID.—ID.-EFFECT OF TRANSACTION-RIGHT OF ACTION AGAINST PAYEE NOT TRANSFERABLE BY MAKER.-The indorsement and surrender of promissory notes to the maker, with the understanding that they were to be transferred by the maker with the benefit of the mortgage security, has the effect to keep such notes and security therefor alive for the purposes of such transfer by the maker, but as the maker cannot acquire any right of action upon the indorsement made thereto by the payee, no such right can be transferred by the maker, and the mere title to the notes is vested in the transferee.

ID.-ID.-ID.--ID.-PLEADING AMENDMENT OF ANSWER AT TRIALCHANGE OF ADMISSIONS TO DENIALS-DENIAL OF GENUINENESS AND DUE EXECUTION OF INDORSEMENTS-EVIDENTIARY MATTER-ABSENCE OF ABUSE OF DISCRETION.--It is not improper to allow an amendment to the answer at the close of plaintiff's evidence, so as to deny the genuineness and due execution of the endorsements, where the defendant admitted the execution and "his indorsement" of the notes in his original answer, neither the complaint nor original answer being verified, and the object being to negative evidence of endorsements showing receipt of interest.

ID.-ID.-ID.-ID.-EVIDENCE-SURRENDER OF NOTES-PROOF OF AGREEMENT ADMISSIBLE.-Proof of the agreement of the payee with plaintiff's intestate in the surrender of the notes is admissible.

ID.-EVIDENCE-CANCELLATION OF WRITTEN CONTRACT-NEW CONTRACT-PAROL PROOF ADMISSIBLE.-It is competent to show by parol

evidence that a former written contract was canceled as between the parties, and has no longer operative effect, and to show a new contract relating thereto.

ID.

PLEADING AMENDMENTS-TIME.-Courts are liberal in allowing amendments to pleadings and at all stages where the rights of the adverse party are not unduly prejudiced.

Appeal from the Superior Court of Kings County-John G. Covert, Judge.

For Appellant-H. Scott Jacobs.

For Respondent-Charles G. Lamberson and John F. Pryor.

The action is to recover judgment against defendant as indorser of two promissory notes for $1000.00 each, executed by the Sunset Vineyard Company, payable to defendant, dated January 25, 1892, and falling due on or before January 1, 1898. The notes not being paid at maturity, were duly protested and notice of non-payment given defendant. Plaintiff's intestate died December 19, 1894, and the notes came into plaintiff's possession among other effects of deceased. Defendant refused payment and hence this suit.

The principal contention of plaintiff is that Finding II is not supported by the evidence. Paragraph "2" of the amended answer set forth the defense to the action as follows:

"The defendant denies that he did, at any time prior to the first day of February, 1894, or at any other time, whatever, or at all, for value received or at all, duly or otherwise, endorse or transfer or deliver said promissory notes set out in the complaint, or either of them, to James A. Bradley, plaintiff's intestate named in said complaint.

"But, on the contrary thereof, defendant alleges: That long prior to the first day of February, 1894, this defendant wrote his name upon the back of said notes, and each of them, and thereupon placed said notes in the possession of M. W. Upton, at the City of San Francisco, and thereafter agreed with the said James A. Bradley and with the Sunset Vineyard Company, that the said defendant would surrender and deliver up the said promissory notes to said Sunset Vineyard Company, and thereupon instructed the said M. W. Upton to deliver the two promissory notes set out and described in the complaint herein to the said Sunset Vineyard Company, and that thereafter the said James A. Bradley received the said promissory notes from the said M. W. Upton, acting as the Agent of the said Sunset Vineyard Company, and, as defendant is informed and believes, thereafter retained the said notes in his possession until the death of the said James A. Bradley.

"That said order to the said M. W. Upton for the delivery of said notes to the said Sunset Vineyard Company was made for the purpose of surrendering up to the said Sunset Vineyard Company the said evidence of indebtedness, and for the purpose of cancelling the same, and not with the intention that the same should ever become the property of the said James A. Bradley or that said James A. Bradley should have any right or interest therein."

The court, in Finding II, finds the facts substantially as averred in the amended answer and in Finding VII finds "that all the allegations of paragraph '2' of the 'further and separate answer and

defense herein' set forth and contained in the amended answer herein are true."

The cause was tried once before and judgment given for plaintiff. On appeal the first district court of appeal reversed the judgment. (Bradley v. Bush, 1 App. Rep. 516.) Guided by the principles enunciated by the appellate court, the learned trial judge at the second trial, upon facts substantially the same as those appearing at the first trial, entered judgment for defendant. The supreme court denied a rehearing in that court on the first appeal, thus affirming the principles of law involved. We feel relieved, therefore, from an extended discussion of either the facts or the law of the case. Upon sufficient facts the court made the finding complained of, which was as follows:

"That said defendant did not at any time endorse or transfer said promissory notes or either of them to one James A. Bradley, but did prior to December 19, 1894, cause said promissory notes to be delivered to said James A. Bradley, but did not cause said delivery to be made with any agreement or intention on the part of said defendant or of said James A. Bradley, that the title to or ownership of said promissory notes or either of them should thereby or at all be transferred from the defendant to said James .A. Bradley; but on the contrary thereof such delivery of said promissory notes and of each of them was made upon the understanding and agreement between said defendant and said James A. Bradley, that said promissory notes and each of them were delivered to James A. Bradley as an agent of said Sunset Vineyard Company, a corporation, to be cancelled and retired so as to reduce the indebtedness owing by said Sunset Vineyard Company."

Speaking of defendant's offer to prove certain facts by witness Upton (he testified at the second trial to those facts), which the lower court refused to allow on the ground that "there is the same evidence before the court now" and that there cannot "be any dispute as to the facts of the case at all", which raling was held to be error, the appellate court said:

"From this it appears that the court understood the transaction as stated above; but it will be observed that the declarations of Bradley to Upton had not been proved, and that the testimony offered as to these was not only new, but of material importance. For, the transaction being as stated, it would follow that Bush did not indorse, transfer, or deliver the note to Bradley, but to the company; as to which the transfer and indorsement could create no obligation (Civ. Code, sec. 3116); nor, indeed, could it have any effect other than that of a mere relinquishment or surrender of his title to the company. The ordinary effect of such a transaction would be to extinguish the obligation itself; but here, by agreement between Bradley and the corporation, assented to by Bush-who held the other notes-the note was not to be canceled, but was to be transferred by the latter to Bradley, to be held by him as evidence of its debt, with the benefit of the mortgage security. Such an agreement would doubtless be valid, and its effect would be to keep the note alive and to vest the title in Bradley. But-assuming the facts to be as stated in the offer of proof-his title would come to him from the company, and there would be no contract of trans