In response to appellant's petition for rehearing, we deem it proper to say that we are satisfied with the views heretofore expressed except as to one proposition discussed in considering the sixteenth count involving the small amount of $17.70.
The point seems not to have been made in the court below nor by counsel at all that the answer is insufficient; hence, as contended by petitioner, we should not base our decision upon that ground, but we still think that since the judgment in favor of plaintiff is for $1,000, the contention that it should be reduced to the extent of $17.70 involves the maxim, "Deminimis." Besides, upon a re-examination of the record, while the evidence is not altogether satisfactory to us, we are not prepared to say that it is insufficient to support the finding of the court as to said $17.70.
The witness Conlin did testify that "The Ranch Mine is indebted to me for telegraphing and expressage in the sum of $17.77," and while his cross-examination reveals some statements apparently inconsistent with this conclusion, the whole of the testimony furnishes sufficient support for plaintiff's claim, as there is no doubt of the assignment by Conlin to plaintiff.
The petition for 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 February 17, 1908. *Page 186