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District Court of Appeal, Second District, Division 2, California.

EVANS v. BEHNE et ux.

Civ. 11921

Decided: November 18, 1938

Thomas P. Walker and Alfred R. Meyers, both of Los Angeles, for appellants. Hy Schwartz and N. Stanley Levine, both of Los Angeles, for respondent.

Defendants appeal from a judgment in plaintiff's favor in an action to recover the balance due plaintiff's assignor, W.H. Nichols, on a contract for the construction of a building.

The only question presented for our determination concerns defendants' contention that the evidence is insufficient to support the findings. Plaintiff alleged that the contract between the parties, which was oral, called for the construction of a building upon the basis that plaintiff's assignor should receive as his compensation ten per cent of the cost of the building. On the other hand defendants assert that according to the contract plaintiff's assignor was to receive a specified sum. Each of the parties to the contract testified as a witness and each gave positive testimony concerning the agreement. Mr. Nicholas related in detail a conversation in which according to his version the cost-plus plan was agreed upon, but Dr. Behne testified that he agreed to pay only a specified sum for the construction of the building. The appellants present a summary of the evidence as it appears to them and conclude with the statement that “the questioned findings are not supported by any substantial evidence in the record but on the contrary are wholly denied thereby”. The respondent presents a summary of the evidence as it appears to him and concludes with the remark: “It is apparent from the above that the evidence is conclusive that the work was done by the contractor, plaintiff's assignor, on a cost-plus ten per cent basis.” From an examination of the record we are satisfied that there is sufficient evidence to support the findings.

The judgment is affirmed.

WOOD, Justice.

We concur: CRAIL, P.J.; McCOMB, J.

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