In granting the motion vacating the first judgment for defendant and directing judgment for the plaintiff, the order of the court recites as follows: "The plaintiff's motion to set aside and vacate the judgment (based upon findings of fact made by the court) heretofore rendered against him and entered on the twenty-fourth day of December, 1919, and to enter upon said findings a judgment in the plaintiff's favor in accordance with the prayer of his third amended complaint, filed here on the 24th of November, 1919, came on regularly to be heard on the twentieth day of January, 1920, the parties appearing by their respective counsel, whereupon, after argument heard from both sides, the court being duly advised, grants said motion and orders that judgment be entered accordingly." The judgment thereafter made and entered, after reciting the foregoing order, decrees as follows: "Wherefore, it is now ordered, adjudged, and decreed that the conclusions of law heretofore announced be amended and corrected by striking out said conclusions as the same now appear in the findings of fact and conclusions of law and substituting in lieu thereof the following: As conclusions of law from these facts the court decides that the plaintiff is entitled to judgment according to the prayer of his third amended complaint. And it is further ordered, adjudged, and decreed that the judgment heretofore entered herein on the twentyfourth day of December, 1919, be and the same is hereby set aside and vacated, and that the plaintiff do have and recover from the defendant the sum of five thousand dollars together with his costs." Thereafter, on the ninth day of April, 1920, judgment was entered for the plaintiff for five thousand dollars damages, but without interest. Plaintiff at the time objected to the entry of a judgment without interest as not being in accord with the order of the court directing such judg ment, but the court overruled the objection and caused the judgment to be entered without interest, to which ruling plaintiff excepted. No question is raised by the defendant as to the regularity of the proceedings on the motion under section 663 of the Code of Civil Procedure. The new judgment is, therefore, to be considered precisely as though it were founded on original findings of fact and conclusions of law. Plaintiff's rights in the premises are to be measured by the findings of fact rather than the conclusions of law, and if the facts do not entitle him to interest, he is not prejudiced by the judgment. The trial court, under section 663 of the Code of Civil Procedure, still had jurisdiction to further amend its conclusions of law if they did not conform to the findings of fact. This, perhaps, would have been the consistent course, but if under the findings of fact plaintiff is not entitled to recover interest, he would not be entitled to relief on this appeal. [5] An erroneous conclusion of law does not constitute a cause of reversal if the judgment is right. (Spencer v. Duncan, 107 Cal. 423, [40 Pac. 549]; Helm v. Duncan, 3 Cal. 454; Bleven v. Freer, 10 Cal. 172.) As has already been shown by the record, this judgment was for damages arising from the unlawful changing of the street grade in front of plaintiff's premises by the city of Los Angeles. [6] The claim sued on was unliquidated and could not draw interest before judgment even as against an individual defendant. (Perkins v. Blauth, 163 Cal. 782, [127 Pac. 50]; Cox v. McLaughlin, 76 Cal. 60, [9 Am. St. Rep. 164, 18 Pac. 100].) [7] As against the state or a municipality thereof interest cannot be recovered except under special statutory authorization. (Engebretson v. City of San Diego, 185 Cal. 475, [197 Pac. 651]; Savings & Loan Society v. San Francisco, 131 Cal. 356, 363, [63 Pac. 665].) The appeal by plaintiff is, therefore, also without merit. The judgment is affirmed. Lennon, J., Lawlor, J., Shurtleff, J., and Angellotti, C. J., concurred. [L. A. No. 6256. In Bank.-October 14, 1921.] S. J. PARSONS, Respondent, v. ANNIE DELL SEGNO, Appellant. [1] ACCOUNT STATED-WHAT CONSTITUTES.-An account stated is an agreement between both parties that all the items of the account are true, which agreement need not be express but may be implied from circumstances. [2] ID.-SUFFICIENCY OF EVIDENCE.-Where the creditor rendered his account to the debtor on a certain date, after which the latter paid several amounts for which the former gave her credit and ten months afterward mailed her another account, the first item of which was the balance shown by the previous statement, to which latter statement of account the debtor made no objection and after the amount claimed to be due was demanded stated she would settle the account and offered to give her note for it, there was an account stated. [3] ID.-SURCHARGING AND FALSIFYING ACCOUNT-FRAUD OR MISTAKE -PLEADING.-In order to surcharge and falsify an account stated on the ground of fraud or mistake, the facts constituting the fraud or mistake must be pleaded, a reopening of the account asked for, and the proof must be confined to the allegations of fraud or mistake. [4] ID. VOID CONTRACT-REPUDIATION OF-CLAIM OF FRAUD.-In an action upon an account stated, where the only assignment of fraud was the alleged inclusion in the account of a demand based upon a void contract for a contingent fee in a divorce suit, but there was evidence from which the court could have found the void contract was repudiated by the parties and a new one entered into in lieu thereof, the claim of fraud is not sustained. [5] APPEAL ASSIGNMENTS OF ERROR INSUFFICIENCY OF.-Assignments of error to findings "on the ground that the court would not allow any evidence on those issues," with a mere reference to the transcript on appeal for certain rulings of the court on the admission and rejection of testimony, but without attempt to print in the briefs those portions of the record, or to show wherein the errors, if any, lie, do not conform to the requirements of section 953c of the Code of Civil Procedure. 1. What constitutes an account stated, notes, 62 Am. Dec. 85; 136 Am. St. Rep. 37; 27 L. R. A. 811. 4. Illegal character of original transaction as defense to an action on account stated, note, 45 L. R. A. (N. S.) 539. APPEAL from a judgment of the Superior Court of Los Angeles County. Dana R. Weller, Judge. Affirmed. The facts are stated in the opinion of the court. S. J. Parsons, in pro. per., for Respondent. LAWLOR, J.-This is an appeal by the defendant from a judgment in favor of the plaintiff for $3,509.11 and costs, being the full amount demanded in an action in three counts to recover the sum of $250, with interest, on each of two promissory notes signed by the defendant, as maker, and the sum of $2,160.61, with interest, on an alleged account stated. In June, 1911, appellant retained respondent as her attorney for the purpose of bringing an action for divorce against her husband, A. Victor Segno, effecting a property settlement with him, and looking after other legal business for her. The divorce was granted and the property divided. In the course of handling her affairs, aside from the divorce action and the property settlement, respondent appeared as her attorney in the trial of certain other cases, organized a corporation for her, and otherwise assisted in the conduct of her affairs. At the time appellant retained respondent, they entered into an agreement in writing whereby appellant agreed to give respondent seven per cent of all the property she received from her husband under the settlement. According to the evidence, the value of this property was never definitely ascertained. It is not disputed that this contract was void as against public policy, being a contract for a contingent fee in a divorce action (Newman v. Freitas, 129 Cal. 283, [50 L. R. A. 548, 61 Pac. 907]), but both parties testified they were unaware of the illegality of the contract at the time. Respondent testified that this contract was repudiated, and a new agreement arrived at after the divorce was granted, whereby he was to receive five thousand six hundred dollars, or seven per cent on eighty thousand dollars, which he asserted they both agreed should be assumed to be the value of the property received from the husband. Appellant testified respondent made an offer to her of such a proposition, but that she never agreed to it. It is this asserted second contract which respondent contends is the basis of his claim. Respondent charged appellant additional sums for the services he performed for her after the divorce was granted and the property settlement concluded. From time to time. she paid him varying amounts of money to apply on the total bill. In June, 1913, she gave him the two notes for $250 each, one payable to him, and one to his wife, to apply on the account, on which notes it was agreed respondent was to borrow money. Respondent sent appellant several statements of account and letters asking her to make him payments. On November 1, 1913, he sent her a statement of account, the first item of which was "Bill as per agreement, $5,600.00," and according to the account the total amount due on that date was $1,286.21. This balance was never objected to by appellant prior to the trial. Ten months later, September 1, 1914, he sent her another account which he insists constituted an account stated. The first item of this account was the balance of $1,286.21 shown by the account of November 1, 1913. Then followed charges and payments showing a balance of $2,160.61 due on September 1, 1914. To this statement of account respondent received no reply, although he wrote appellant on December 19, 1914, inclosing a copy thereof, and on February 1 and 12, 1915, concerning it. In 1915 respondent assigned the notes referred to, and the account as represented by the statement of September 1, 1914, to one Fred O. Ricketts, who commenced suit on them. According to the testimony of Neil S. McCarthy, respondent's attorney in that action, while the suit was pending appellant promised to pay the amount demanded, and to give her note for it. A demurrer was interposed and sustained. On June 30, 1915, on motion of plaintiff, the case was dismissed. After the dismissal the notes were reassigned to respondent by Ricketts, and this action followed. The notes constitute the causes of action in the first two counts, and the statement of account of September 1, 1914, alleged to be an account stated, the cause of action in the third count. As defenses to the notes, appellant pleaded the statute of limitations, that the action brought by Ricketts was a bar to this one, that the notes were for the purpose of enabling |