DocketNumber: S. F. No. 247
Citation Numbers: 115 Cal. 79
Judges: Belcher
Filed Date: 11/24/1896
Status: Precedential
Modified Date: 1/12/2023
This is an action to recover for professional services, alleged to have been rendered by the plaintiff, as an attorney at law, for the defendant, Mary A. Neary. The court below found the facts, and gave judgment in favor of the plaintiff, from which and from an order denying a new trial defendants appeal.
The action in which the services are alleged to have
On November 30, 1888, the court announced from the bench that the plaintiff had failed to make out her case, and the defendant had made out a case on his cross-complaint, and thereafter, on January 9, 1889, it made and entered its judgment and decree granting to the defendant and cross-complainant a divorce from the plaintiff in said cause. The plaintiff moved for a new trial on a statement of the case, and her motion was denied April 15, 1889. Thereupon she appealed from the judgment and order. The appeal from the judgment was dismissed at the request of the appellant on June 21,1889, and the appeal from order refusing a new trial was dismissed, upon like request, on August 24, 1891. On the next day after the appeal from the judgment was dismissed, June 22, 1889, the appellant, Mrs. Godfrey, was married to her codefendant here, Nicholas E. Neary.
It is averred in the complaint in this case that the plaintiff was an attorney and counselor at law, and as such was engaged and retained by the plaintiff in the divorce case at the time the action was commenced; that he continued to render services as such attorney for the plaintiff in that action, without any specific agreement or contract as to his compensation therefor, until some time in November, 1888, when he and Mrs. Neary, then Mrs. Godfrey, entered into an agreement that in consideration that he would continue to render professional services for her in said action she would pay him for his services one thousand dollars down, one thousand dollars more when the motion for new
The answer of Mrs. Neary denies that she made the specific agreement, or any agreement with the plaintiff, as alleged in the complaint, and avers that after the motion for new trial in the divorce case was denied she and the plaintiff agreed that he should receive, in full compensation for his services theretofore rendered in said cause, the sum of seven hundred and fifty dollars,, and that no further services should be rendered by him; that the said sum of seven hundred and fifty dollars was. paid by her to plaintiff, and was by him then and there accepted as a full compensation for all his services rendered in said cause, and that the relation of attorney and client between the said parties was then and there dissolved, and no further services were ever rendered by plaintiff in said cause.
The court below found that Mrs. Neary agreed to pay the plaintiff for his services in the trial of the case of Godfrey v. Godfrey, from the commencement to the conclusion thereof in the superior court the sum of seven
The case is very ably and elaborately argued by counsel upon both sides, but, in view of the conclusion reached, we deem it necessary to notice only a few of the points made.
1. The fact that the complaint avers that, under the agreement between the parties, the first payment to the plaintiff was to be one thousand dollars, while the court found that it was to be only seven hundred and fifty dollars, is no ground for a reversal. It was a disputable question as to what the amount of that payment was to
2. There was a clear conflict of evidence upon .many of the issues presented, but it would subserve no useful purpose to set the evidence out. After a careful inspection of the record we think there was evidence tending to support each of the findings, and the judgment cannot therefore be reversed on this ground.
3. There was no error in denying the defendant’s motion for nonsuit. When the motion was made the plaintiff had made out a prima facie case, and there was no material variance between the averments and the proofs. The case of Owen v. Meade, 104 Cal. 179, cited by appellants, is not in point.
4. The point that the court erred in sustaining objections to certain questions propounded to Mrs. Neary and Mr. Davidson, one of her attorneys in the divorce case, cannot be sustained. The questions related to transactions and conversations between Mrs. Neary and Mr. Davidson in the absence and without the knowledge of the plaintiff, and under no circumstances could the plaintiff’s rights be affected by the evidence sought to be elicited. It was therefore clearly inadmissible under any known rule of law.
We advise that the judgment and order appealed from be affirmed.
Searls, C., and Haynes, C., concurred.
For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.
McFarland, J., Henshaw, J., Temple, J.
Hearing in Bank denied.