Cavillaud v. Yale , 3 Cal. 108 ( 1853 )

The opinion of the court was delivered by

Heydenfeldt, Justice.

Wells, Justice, concurred.

The demurrer to the declaration was well taken. In declaring against an attorney for negligence, it is only necessary to aver generally that he was retained, without stating specially that a retaining fee was paid. But the averment here goes further, and shows that the employment or engagement of the defendant was in consideration of certain reasonable fees and rewards to be paid him. No future time is stated as having been agreed upon for the payment of the fee, and the inference must be, that it was to be paid before the services were rendered, because an attorney is always entitled to his retaining fee in advance, unless he stipulates to the contrary. Therefore, the declaration averring that the fee was to be paid, should also have averred the payment, as distinctly as the performance of any other condition precedent is necessary to be stated.

Judgment overruling demurrer is reversed, with costs.