In response to appellant's earnest petition for a rehearing, we deem it sufficient to call attention to the following quotation from the case of McFarland v. Holcomb,123 Cal. 85, [55 P. 761]: "In her complaint she alleges as the basis of her claim 'that William A. Holcomb was at the time of his death indebted to the plaintiff in the sum of seven thousand five hundred dollars as a balance due plaintiff for nursing, boarding, counseling, advising, and taking care of said William M. Holcomb almost continuously from the twenty-ninth day of November, 1870, down to the fourth day of November, 1895, in the City and County of San Francisco, State of California.' " It will thus be seen that the action was for services performed, that there was no allegation that they were performed at the instance or request of Holcomb, or that there was any promise to pay. The supreme court, however, held that the complaint stated a cause of action. If that case is not directly in point here, or if it is to be overruled, the decision to that effect must come from the supreme court.
The rehearing is denied.
Hart, J., and Chipman, P. J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on October 12, 1908, Beatty, C. J., dissenting. *Page 677