<p>Appeal from the District Court, Third Judicial District, Alameda County.</p> <p>The plaintiff was an attorney-at-law and brought this action to recover $5,675 for legal services rendered for the defendant from October, 1868, to November, 1871. The plaintiff was the only witness on his own beht.lf, and testified that he had been the attorney of the defendant from Octoher, 1868, to November, 1871, and that the defendant owed him for services rendered during that time; and that about November 1, 1871, he asked the defendant, at Alameda county,, for $500 on account, and defendant asked him to make out his account and transmit it by mail to the defendant at Stockton; and that within a few days he made out and sent by mail to Stockton, to the defendant, a detailed account for his services, amounting in the whole to the sum of $5,675. The plaintiff also testified that on two subsequent occasions he met the defendant at San Leandro, Alameda county, and asked him for $500, on account, which the defendant promised to pay, but failed to do so.</p> <p>The defendant was the only witness on his behalf, and testified that the plaintiff never rendered him an account, and that until he was sued he did not know what the plaintiff claimed. He stated that the plaintiff had rendered him legal services, and that he had paid him for every thing he had done, and that the plaintiff was always in his debt.</p> <p>The Court rendered judgment in favor of the defendant, and the plaintiff moved for a new trial. The Court granted a new trial. The following is the opinion of the Court below in granting a new trial:</p> <p>“The plaintiff’s motion for a new trial in this action having been argued and submitted by the attorneys of the respective parties, upon the foregoing bill of exceptions and judgment roll, etc., in this action, all of which are hereby referred to and made part of this statement, I do now, having fully considered said motion, sustain the same upon the ground that I am not satisfied that justice has been done to plaintiff by the decision and judgment in this action, because the- defendant by his testimony admitted that the plaintiff had rendered for him legal services as an attorney-at-law, although he contends that he had paid for them; but the- plaintiff failed to make proof of the value of those services. He- rested his case upon the testimony tending to prove that he- had sent 'to the defendant, through the post-office, a stated account. But the defendant testified that he never received such an account, and upon that testimony I found for the defendant. To give the plaintiff an opportunity of proving the services rendered by him for the defendant, and their value, I think a nexv trial should be granted; and it is so ordered, upon plaintiff’s paying to the defendant all the costs which have accrued in the action.”</p> <p>The defendant appealed from the order granting a new trial.</p>
