LEONI v. DELANY (1948)

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

LEONI v. DELANY.

Civ. 13154.

Decided: February 16, 1948

Phillip Barnett and R. L. Dreyfus, both of San Francisco, for plaintiff. James A. Himmel, of San Francisco, for defendant.

The petition for a rehearing fails to recognize that the essence of the claim in this case is the rendition of personal services. The plaintiff has sued to recover for these services in two counts. In the first count $5,000 is sought to be recovered upon the ground that this amount was expressly agreed to be paid; the second count is for the reasonable value of said services in whatever amount the proof might show such value to be. The jury was instructed with respect to both express and implied contracts, and brought in a verdict for $4,000. This is less than the alleged agreed price and is what the jury found the services to be reasonably worth under the second count.

A rehearing is denied.

JONES, Justice pro tem.

NOURSE, P. J., concurs. GOODELL, J., votes for a rehearing. Hearing denied; SHENK and EDMONDS, JJ., dissenting.

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