Haley v. McDermott

121 P. 1060, 45 Mont. 217, 1911 Mont. LEXIS 113

• Court: Montana Supreme Court
• Decided: December 8, 1911
• Docket: No. 3,027
• Status: Published

Opinions

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

This action was brought to recover $1,420 and interest. Plaintiff prevailed in the lower court, and the defendant appealed. The complaint alleges that during 1895 and 1896 the defendant was United States marshal for the district of Montana, and that plaintiff was his duly appointed deputy. It then alleges that at defendant’s special instance and request plaintiff performed services of the agreed value of $1,420, no part of which has been paid. In their brief counsel for appellant say: “All the errors specified herein relate to the same point, and are of different classes only because of the manner in which they arose in the trial of the case. Our contention was that, plaintiff having alleged an express contract, a recovery could not be had upon any other theory.” The transcript contains portions of the testimony given by certain witnesses, and then concludes: “Whereupon other witnesses were called and sworn and testified in behalf of plaintiff, and upon plaintiff’s counsel announcing to the court that plaintiff rested, counsel for the defendant presented and made the following motion” for nonsuit.

We enter upon our consideration of this case with the presumption in favor of the correctness of the judgment, and [1] 'appellant has the burden of showing reversible error. (Donovan-McCormick Co. v. Sparr, 34 Mont. 237, 85 Pac. 1029; Van Vranken v. Granite County, 35 Mont. 427, 90 Pac. 164.)

Since the record shows that it does not contain all the evidence, [2] we will assume that the evidence omitted) fully sustains the judgment.

If this be true, then the admission in evidence of facts and circumstances tending to show the value of the services rendered was not error. (Albertini v. Linden, 43 Mont. 126, 115 Pac. 31.) In any event, the record fails to show that any error was committed.

The judgment is affirmed.

'Affirmed.

Mb. Chief Justioe Beantly and Mb. Justice Smith concur.

Rehearing granted February 5, 1912.

(Submitted March 13, 1912. Decided March 14, 1912.) Judgment — Failure of Proof. 1. A judgment in favor of plaintiff in an action to- recover for services performed at defendant’s special instance and request entirely unsupported by the evidence, -will be reversed on appeal.