J. P. Armstrong v. Adams , 102 Cal. App. 677 ( 1929 )

This is an appeal from a judgment of dismissal upon failure and refusal of plaintiffs to amend, after sustaining demurrer to their third amended complaint.

The present action was brought by plaintiffs against the defendant for damages resulting from alleged culpable negligence of defendant, as their attorney, in preparing findings in support of a judgment in favor of plaintiffs in an action to recover damages for deceit and failure of consideration in a real estate transaction.

It is alleged in the complaint in the present action that plaintiffs employed defendant to represent them and to prosecute an action to recover damages from Walter F. Rau and Mary Rau, arising on a transaction effecting an exchange of properties; that the property received by the plaintiffs here in such exchange consisted of an orange grove and improvements thereon, situated in the county of San Bernardino; that this property was accepted in the exchange transaction on the representation that it contained 55 acres; that it was disclosed after the deal had been consummated that it only contained 44.59 acres.

That an action for damages to recover the difference in value between the property as conveyed and its value, had it contained the 55 acres as represented, was instituted against the Raus in the Superior Court of San Bernardino County. That the case was tried before the court without a jury, and proof introduced in behalf of plaintiffs that the property in question was worth $9,360 less than it would have been had it contained 55 acres as was represented, and that the court at the conclusion of the trial announced its judgment for the plaintiffs in said sum, and directed defendant here, the attorney for the plaintiffs, to prepare findings; that proposed findings were drawn up by plaintiffs' said attorney, and accepted and adopted by the court, but that said findings, as thus prepared and adopted, instead of stating that the property in question, had it contained 55 acres as represented would be worth $9,360 more than it was worth with an acreage of only 44.59 acres, stated "that had said property embraced 55 acres, instead of 44.59 acres, the value thereof would be $9,360.00"; and that no statement of the difference in value between the property as conveyed, and as represented, was contained in the findings; that the defendants in said action appealed therefrom on the judgment-roll alone, and that on such appeal to the District Court of Appeal the judgment was reversed.

The original judgment is alleged to have been made and entered about October 7, 1922, and the judgment of reversal about April 15, 1925. The complaint also alleges that the defendant attorney wilfully, knowingly and with an intent to conceal his negligence in preparing said findings, withheld all information of the fatal omission therein, and that plaintiffs had no notice or knowledge thereof until after the judgment of reversal in the court of appeal.

The complaint states that the defect in the findings was the ground on which the court of appeal reversed the judgment. It is apparent that the findings in question were insufficient to support the judgment, and, as a matter of fact, the opinion of the court of appeal, as reported in 72 Cal.App. 288 [236 P. 937], shows conclusively that the judgment of reversal was based on the insufficiency of the findings. The court says: "It is perfectly clear that the facts as found furnish no basis whatever for damages in the sum stated, or in any amount."

Under the new section 956a of the Code of Civil Procedure and section 4 3/4 of article VI of the Constitution, these defects of the findings could be cured by the appellate court, but as the law then stood, and as is pointed out in the opinion, the appellate court was without authority to amend the findings, or to disregard the conclusiveness of the record as presented. No attempt seems to have been taken at any step in the proceedings to correct the error, and it does not appear whether a new trial was ever had or a recovery obtained from the defendants in that action for the damages sustained in the property exchange.

Plaintiffs' action in the present case is for damages and injuries, consequences alleged to have resulted from the negligence of plaintiffs' attorney in drafting these findings and in concealing and withholding from plaintiffs knowledge of the fatal omissions.

The complaint contains four alleged causes of action.

The first demands damages on account of the loss of interest on the judgment against the Raus, from the date of its entry, to the date of its reversal, in the sum of $2,430, and costs, which loss is alleged to have been the direct and proximate result of defendant's negligence in preparing the findings.

The second cause of action asks for the cancellation of a note and mortgage given by plaintiffs to defendant in consideration of the attorney's services, consisting in a large part of the services alleged to have been rendered valueless by the defective findings.

The third cause of action demands the cancellation of said note and mortgage under allegations that the plaintiffs were induced to execute them under the belief entertained by plaintiffs and created by the wilful and fraudulent withholding of information as to the insufficiency of the findings in question, to sustain plaintiffs' judgment for damages and the consequent failure of consideration for the note and mortgage, based on defendant's claim for legal services.

The fourth cause of action seeks the cancellation of the same note and mortgage by reason of alleged undue influence of defendant as the confidential attorney and advisor of plaintiffs, and their reliance on his integrity and good faith.

A general demurrer was filed by defendant to each and all of these causes of action, on the ground that neither of them or all of them together stated facts sufficient to constitute a cause of action against defendant, and also demurring specially to each cause of action on the grounds of uncertainty, ambiguity and unintelligibility, and further alleging a misjoinder of causes of action.

The demurrer to the complaint, which was plaintiffs' third amended complaint, was sustained in its entirety, and plaintiffs refusing and failing to further amend, the judgment of dismissal from which this appeal was taken was made and entered.

The correctness of the judgment of dismissal depends on whether or not either of the alleged causes of action is sufficiently pleaded. [1] Respondent concedes the rule that if any count or cause of action in a complaint setting up several counts or causes of action is good as against demurrer, that a judgment of dismissal for insufficiency of the complaint cannot be sustained. (Jensen v. Dorr, 159 Cal. 742 [116 P. 553]; Brandt v.Brandt, 178 Cal. 548 [174 P. 55]; Jones v. Iverson,131 Cal. 101 [63 P. 135]; Etchas v. Orena, 127 Cal. 588 [60 P. 45].)

Respondent calls attention to the fact that all of the decisions cited referred to rulings on general demurrer. It will hardly be contended, whether the demurrer is general or special, that if one of several causes of action properly joined in the complaint is sufficiently pleaded, that the action as a whole can be dismissed.

In this case, each of the four causes of action is demurred to generally for want of sufficient allegation of facts, and specially on the grounds of ambiguity, uncertainty and unintelligibility. Dealing first with the special demurrer, it will be noticed that on each of the grounds stated to each of the causes of action the objection is directed solely to the insufficiency, uncertainty, ambiguity and unintelligibility of the statement of damages. [2] If the allegations of the complaint demurred to set forth a legal right on the part of the plaintiffs, and wrongful violation of that right by defendant and damage proximately resulting therefrom, a cause of action is stated, and it is not necessary to point out in detail in the pleadings the nature and extent of such damage, unless special damages are claimed; and if, in an attempt to do so, redundant matter is pleaded, it cannot be laid to uncertainty or ambiguity, if the essential elements of the cause are plainly presented, and show some actual damage.

We are discussing now the sufficiency of a complaint to sustain plaintiffs' standing in court and right to recovery of some sort of judgment. [3] Under the ad damnum clause as general allegation of damages, a plaintiff may prove and recover those damages which naturally and necessarily result from the act complained of, and such damages need not be specially pleaded. (8 Cal. Jur., p. 887.)

"Under a general allegation of damages, a plaintiff may prove and recover those damages which naturally and necessarily result from the act complained of. These damages, the law implies, will proceed from the act, although the amount may often be in the reasonable discretion of the jury. They are called ``general' as contradistinguished from ``special' damages, which are required to be specially stated in the declaration." (Mitchell v. Clarke,71 Cal. 163, 167 [60 Am. Rep. 529, 11 P. 882, 884].)

"The question as to how general damages from the breach of a contract have arisen otherwise than as disclosed by the general allegation of damages, is the subject of evidence, rather than pleading." (Lillie v. Weyl-Zuckerman Co., 45 Cal.App. 607 [188 P. 619, 620].)

[4] Considering the ruling on the special demurrer, as applied to the plaintiffs' first cause of action here, we find that each of the grounds of demurrer is based on an allegation that it cannot be determined therefrom:

"(a) How, or whether the interest of $2,430.00, which it is sought to recover, has been lost, or whether it ever will be lost.

"(b) How, or in what way plaintiffs or either of them have been damaged by any acts of defendants or of what the damage consists."

The particular allegations of the first cause of action to which these objections are addressed are as follows:

"That by reason of the failure of defendant to prepare said findings of fact in a careful and lawyerlike manner, and of the fact that the defendant caused and procured the court to sign and adopt in said action the defective and imperfect findings which were prepared by defendant in his capacity as attorney for plaintiffs in said action as aforesaid, plaintiffs have incurred loss and damage, in that said judgment rendered in said action against Walter F. Rau and Mary Rau, was reversed by said District Court of Appeal, and plaintiffs have lost the benefit thereof; that plaintiffs have lost the interest which accrued in said judgment up to the time of the reversal thereof, and would have accrued thereon from said time to the time when a new trial of said action could have been had, to-wit: as plaintiffs are informed and believe and therefore allege, on or about the first day of July, 1926, amounting to the sum of Two thousand four hundred thirty dollars ($2,430.00), to the damage of plaintiffs in the sum of Two thousand four hundred thirty dollars ($2,430.00)."

Whatever defense might be made to the measure of damages herein set forth, there cannot be said to be a failure to allege damage from the negligent acts of defendant, nor that there is anything ambiguous, uncertain or unintelligible in the allegations; and it cannot be contended that the allegations of fact leading up to the reversal of plaintiffs' judgment fails to show that the reversal of such judgment, under the circumstances set forth, caused damage to plaintiffs sufficient to sustain a judgment in some amount, if shown to be the result of defendant's negligence and breach of duty. We reach the same conclusion as to the sufficiency of the first cause of action against the general demurrer.

[5] The remaining and important question is, was there actionable negligence on the part of defendant in failing to properly prepare the findings in the damage suit, in which he was acting as attorney for the plaintiffs?

We are satisfied that under the facts pleaded, which for the purpose of considering the ruling on demurrer must be accepted as true, the defendant is liable for any damages proximately resulting from the fatal omission in the findings. The general rule as to liability of attorneys for their clients is stated in 3 California Jurisprudence, page 670, section 73, as follows:

"The law implies a promise on the part of an attorney, that he will execute the business entrusted to his professional management, with a reasonable degree of care, skill and dispatch, and the attorney is liable for a violation of this obligation, provided damage results therefrom."

This rule calls for at least ordinary skill and care in the course of the attorney's professional employment. This rule is stated in Gambert v. Hart, 44 Cal., at pages 542, 552, as follows:

"The rule firmly established in this country by the weight of authority is that an attorney is bound to use ordinary skill and care in the course of his professional employment.

"In the late work of Shearman Redfield on Negligence, section two hundred and twelve, it is said: ``The true rule of liability undoubtedly is that an attorney is liable for a want of such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess and exercise.' This is the principle recognized in Wilson v. Russ, 20 Maine, 421 [50 Am. Dec. 386]; Goodman v. Walker, 30 Ala. 482 [68 Am. Dec. 134]; Cox v. Sullivan, 7 Ga. 144, and numerous American cases, and, we think, is not only established by authority, but is founded in reason and justice."

It may be conceded that where the mistake or omission of the attorney arises from controvertible interpretation of law, or some uncertainty or ambiguity of fact, the rule for liability for damages may not be strictly applied, but in this case, the mistake and omission complained of was obviously as to the most important part of the case, the finding of the amount of loss sustained by plaintiff from the difference in acreage between the tract of land conveyed, and as it had been represented. This difference in value was the main issue in the case, and the amount of recovery given by the judgment was to be determined by it.

It is the last thing that should have been overlooked in preparing the findings.

Whether the failure to make such finding was the result of culpable negligence, want of skill or mere indifference, it was, from the standpoint of liability, inexcusable. The same is true if it was a mistake of the stenographer, which was overlooked by the defendant, as would appear likely from the wording of the finding.

[6] Counsel for defendant do not very confidently question the liability of an attorney where there is responsibility for such an error as this. They, rather, try to place the ultimate blame on the judge who adopted and signed the findings. This position cannot be maintained. It is true that the findings became the findings of the court, but section 634 of the Code of Civil Procedure, recognizes the right of the court to direct a party to prepare and submit findings, and it is the accepted practice to leave it to the attorneys for the successful party to draft and submit findings. While it is, of course, the duty of the court before signing findings of fact and conclusions of law to see that they state the facts and conclusions as approved by the court, it will, however, not do to release the attorney from responsibility to his client for a mistake or oversight of the court, which has been induced by an error of the attorney. It cannot be claimed in this instance that the finding as made may have been the finding intended by the court, because the amount of recovery given in the judgment is the precise amount calling for the omitted finding, and dependent upon such finding to sustain the judgment.

The mistake was one for which the defendant was primarily responsible. It resulted in the reversal of plaintiffs' judgment, and presumptively to their damage.

We are of the opinion that the demurrer to the complaint in this action, at least as to the first cause of action, should have been overruled, and that the judgment of dismissal was erroneous. As this finding will necessitate a reversal and new trial, we do not deem it necessary to consider the sufficiency of the other causes of action as pleaded, since the pleadings will be open to further consideration and amendment if necessary, in the trial court.

[7] The demurrer on the ground of misjoinder of causes of action is not well taken for the reason that the ground of relief demanded in each arises from the same transaction, namely, the employment by plaintiffs of the defendant as their attorney, his actionable negligence in this matter, and his alleged fraudulent concealment of the consequences of his act from the plaintiffs. (Code Civ. Proc., sec. 427, subd. 8.)

The judgment is reversed.

Barnard, J., and Marks, J., concurred.

A petition for a rehearing of this cause was denied by the District Court of Appeal on January 13, 1930, and a petition by respondent 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, 1930.

Shenk, J., dissented.