[Civ. No. 1222.

Second Appellate District.

November 11, 1912.]

#### EARL NEWMIRE, Appellant, v. CAROLINE F. FORD, Respondent.

Action fob Legal Services—Alleged Breach of Written Contract fór One Thousand Five Hundred Dollars—Trial—Findings and Judgment for One Thousand Dollars—Appeal on Judgment-roll—Presumption.—In. an action to recover the sum of one thousand five hundred dollars, as alleged damages for the breach of a written contract to pay that sum for legal services, where an answer was filed, and a trial had, and the findings and judgment were for the sum of one thousand dollars, and the complaint did not aver nonpayment of the alleged damages, it is held upon an appeal by the plaintiff on the judgment-roll, that the court having found as a fact that the amount of the damages was the sum of one thousand dollars, it must be presumed that there was evidence to support the finding, as a basis for the conclusion that only that part of the amount agreed to be paid had accrued as damages.

Id.—Measure of Damages Based upon Complaint.—In such action for breach of the alleged written contract to pay the sum of one thousand five hundred dollars as claimed in the complaint, the correctness of plaintiffs assertion that the amount of detriment caused by breach of contract such as the one sued upon will be deemed to be the amount due under the terms of the contract, with interest thereon, cannot be questioned, as such is the measure of damages declared by section 3302 of the Civil Code.

Id.—Proper Denial of Plaintiff’s Motion for Different Judgment. Since the findings of fact under the pleadings support the judgment 'as entered by the trial court, the motion of the plaintiff for a different judgment in the sum of one thousand five hundred dollars was properly denied, and upon Ms appeal, the order denying the same must be affirmed.,

APPEAL from an order of the Superior Court of Los Angeles County denying plaintiff’s motion for a different judgment from that entered. John L. Childs, Judge presiding.

The facts are stated in the opinion of the court.

Byrer *&*Monteleone, and Newmire & Morris, for Appellant.

Earl Rogers, W. H. Delmas, J. S. Steele, and H. W. Nisbet, for Respondent.

*338JAMES, J.

Plaintiff brought this action against defendant to recover the sum of one thousand five hundred dollars alleged as damages sustained because of the breach of a contract made by defendant to pay plaintiff the sum of one thousand five hundred dollars for legal services. An answer was filed and trial had and judgment was rendered in favor of plaintiff for the sum of one thousand dollars. Thereafter plaintiff made a motion for a different judgment on the findings Of fact, claiming that on the facts as found by the trial judge he was entitled to judgment for the sum of one thousand five hundred dollars, as prayed for in his complaint. This motion was denied, and plaintiff appeals from that order.

Attached to the complaint of plaintiff was a copy of the written contract made by defendant in which she agreed to pay to plaintiff, for legal services to be rendered in defending her against a charge of murder, the sum of one thousand five hundred dollars. Plaintiff alleged that he was not permitted to perform all of the services agreed upon, but was discharged by the defendant without cause. His complaint contained no allegation as to the nonpayment of the damages, and the court made no finding as to whether any payment had so been made. This appeal being on the judgment-roll, and the court having found as a fact that the amount of plaintiff’s damage was the sum of one thousand dollars, we must conclude that evidence was heard which would support that finding, or that the trial court found in the evidence a basis for its conclusion that only a portion of the amount agreed to be paid had accrued as damages. *(Beardsley*v. Clem, 137 Cal. 328. [70 Pac. *175]; Neumann*v. *Moretti,*146 Cal. 25, [79 Pac. 510].) The correctness of plaintiff’s assertion that the amount of detriment caused by breach of contract such as the one sued upon will be deemed to be the amount due under the terms of the contract, with interest thereon, cannot be questioned, as such is the measure of damages declared by section 3302 of the Civil Code. For the reasons we have stated, however, the findings of fact under the pleadings of the parties do support the judgment as entered by the trial court and the motion for a different judgment was properly denied.

The order is affirmed.

Allen, P. J„ and Shaw, J., concurred.