Opinion
Hearing Granted by Supreme Court Aug. 15, 1927.
Appeal from Superior Court, Los Angeles County; John L. Fleming, Judge.
Action by Wally A. Kirk, as executrix of the estate of E. E. Kirk, deceased, against B. F. Culley. From a judgment for plaintiff, defendant appeals. Affirmed.
McLucas, Justice pro tem., dissenting.
COUNSEL
Lucien Gray, of Los Angeles, for appellant.
Wm. A. Schreider, of Los Angeles, for respondent.
OPINION
YORK, J.
Defendant appeals from a judgment rendered for plaintiff E. E. Kirk, and Wally A. Kirk, as executrix of the estate of E. E. Kirk, deceased, has been substituted as plaintiff and respondent in the place and stead of E. E. Kirk in the above-entitled cause.
The complaint alleged that certain legal services were performed for defendant at defendant’s special instance and request; that defendant accepted the services, and promised and agreed to pay to plaintiff therefor the sum of $1,350; that defendant paid $350 on account; and that there was a balance due and owing of $1,000. The answer of the defendant admits that plaintiff performed certain legal services at defendant’s special instance and request, and that defendant accepted such services. But defendant’s answer denies that he promised or agreed to pay plaintiff any sum in excess of $350 for services performed, and also denies that he paid $350 on account of a total sum of $1,350, but alleges that the $350 was paid to plaintiff and received by plaintiff in full satisfaction of the services of plaintiff. Plaintiff testified fully in regard to the employment, and there was evidence before the trial court to show that $1,000 was to be paid to plaintiff when he should be able to convince the district attorney of the innocence and integrity of the defendant and succeed in having him dismiss the case against defendant, and that $1,000 was agreed to be paid by defendant, and that he was to procure a certain cashier’s check for that amount, and have it indorsed in blank and delivered in escrow for plaintiff, and that it was to be delivered from escrow to plaintiff on the date that the charge was dismissed against defendant herein. But the evidence further shows that the defendant failed to procure the cashier’s check for $1,000, or in any amount, and that a short time after the contract was made the defendant was again indicted and charged with criminal intent to defraud and cheat, etc.; that thereafter the defendant came again to plaintiff, and he agreed to represent defendant for an additional preliminary fee, which he paid, and he made a second written memoranda, by which he agreed to defend defendant on both of said indictments for the same balance of $1,000 over and above such preliminary fee or retainer. The evidence further shows that on November 1, 1922, when by the agreement the defendant was to pay $1,000 into escrow for the benefit of plaintiff, defendant, instead of paying the money due on that day, substituted another attorney for plaintiff, without any notice to plaintiff, and defendant failed and refused to pay said money into escrow or at all. Plaintiff then brought this action. Plaintiff was the only witness, and defendant did not cross-examine, and the plaintiff rested upon his testimony. Defendant moved for a nonsuit on the ground "that there is not sufficient evidence to warrant a judgment for plaintiff." His argument was that plaintiff’s action was premature, because a certain answer which plaintiff had moved to strike before as immaterial showed that the dismissal of the indictment against defendant occurred long after the case at bar had begun. The motion for nonsuit was denied. Thereafter defendant introduced as a witness the attorney who had been substituted in his place on November 21, 1922. This witness testified, in substance, as to his efforts in having two indictments against defendant dismissed, and he testified that they were finally dismissed, after certain other defendants had made reparation. The trial court found for the plaintiff and gave him judgment with interest from November 1, 1922, the day on which defendant had agreed to pay the balance of $1,000 into the escrow, being the same day that defendant had refused to make such payment into escrow, and had substituted another attorney in place and instead of the plaintiff. The only issue made by the pleadings was whether or not the defendant had promised and agreed to pay the plaintiff the sum of $1,350. It was denied by the defendant, except as to the $350 already paid, and the court, upon evidence introduced found against this denial. Upon an examination of the entire case, we cannot say that there has been any miscarriage of justice. Section 4½, art. 6, Const. In the case of Daley v. Russ, 86 Cal. 114, 24 P. 867, cited by appellant, quoting from page 118 (24 P. 868) we note the possible reason for the court’s very technical decision in that case:
"And where, as here, the demand is unconscionable (being for part of a brokerage of $7,600 for obtaining a loan of $4,000 for four months), we think that leave to amend should be refused. A party who seeks to enforce a liability like that must stand upon his legal rights."
Judgment affirmed.
I concur: HOUSER, J.
McLUCAS, Justice pro tem.
I dissent.
The complaint states two causes of action. The first is indebitatus assumpsit, and alleges that plaintiff performed legal services for defendant at defendant’s special instance and request; that defendant accepted said services, and promised and agreed to pay to the plaintiff therefor the sum of $1,350; that defendant has paid on account of said sum of $1,350 the sum of $350. The second cause of action is in quantum meruit for the indentical services alleged in the first cause of action. No evidence was introduced nor recovery sought under the second count.
Plaintiff prepared a writing, signed by himself, which he testified was agreed to, though not signed by defendant; said contract being plaintiff’s Exhibit No. 2, as corrected by stipulation filed in this court, and reading as follows:
"Los Angeles, California, September 12, 1922.
"Messrs. B. F. Culley and Ovid D. Bohlen, Black Building, Los Angeles, California-Gentlemen: (Re People v. B. F. Culley and Ovid B. Bohlen. Re Indictments Nos. 18311 and 18491.) In order to reduce our understanding regarding services and fees in the above-entitled matters, the substance of our agreement is hereby set down in writing.
"In consideration of my services as the attorney for each of you, my fees are $350 each, to include preparation for trial now set for November 1, 1922; these preliminary fees have been paid in full by each of you.
"For the trial of the above-mentioned cases my charges are to be $250 in each case, from each of you, payable either during or before the termination of each of said trials or of the one trial should the cases be consolidated.
"Should these actions be dismissed against you at any time before the commencement of the trial, during the trial, or prior to the termination of the trial, or in the event of a verdict of acquittal, then it is agreed that my fee is to be a total of $1,000 from each of you. This fee will eliminate all other fees excepting the ones already paid. It is understood and agreed that each of you will, on or before November 1, 1922, procure cashiers’ checks, each payable to yourselves and indorsed in blank and deliver the same to William A. Schreider, attorney at law, in escrow with him, to be delivered to me unconditionally on the date said charges may be dismissed against each of you in any of the manners above set forth.
"E. E. Kirk [Signed].
"I fully understand and agree to all of the terms of the above contract.
"Dated September 12, 1922.
"B. F. Culley [Not signed].
"I fully understand and agree to all of the terms of the above contract.
"Dated September 12, 1922.
"Ovid D. Bohlen [Not signed]."
Plaintiff prepared the case and appeared for the trial at the date set, on November 1, 1922, at which time another attorney was substituted by the defendant. The trial was continued, and the case was dismissed some time after the filing of the complaint in the instant case on April 17, 1923. The court gave judgment for plaintiff in the sum of $1,000, with interest from November 1, 1922.
Appellant’s first specification of error is that defendant’s motion for nonsuit was improperly denied, for the reason that the action was prematurely brought, and for the further reason that there was a variance amounting to a failure of proof between the allegations of the complaint and the evidence. The rule is well settled that the cause of action must exist when the action is commenced. Landis v. Morrissey, 69 Cal. 83, 86, 87, 10 P. 258; Lewis v. Fox, 122 Cal. 244, 252, 54 P. 823; Morse v. Steele, 132 Cal. 456, 458, 64 P. 690.
In the case at bar, the contract was to pay $1,000 on the date of dismissal or acquittal, a check for said sum to be deposited in escrow on November 1, 1922. There had been neither dismissal nor acquittal on the day the complaint was filed. Appellant’s point is well taken. In Cuneo v. Davis, 36 Cal.App. 351, 171 P. 1079, where a contract between attorney and client was under consideration, the agreement provided that, if the attorney defeated the pending action against the client or prevented a recovery, a certain fee should be paid. It was held that the action was not defeated until the judgment became final, and that an action brought for such services pending an appeal taken in the former action was prematurely brought. In the present case, the complaint declares a cause of action on the express contract, and alleges performance thereof. It is not a suit for damages for the breach of the contract on account of wrongful discharge. The cases cited by the respondent correctly state the measure of damages where the contract has been wrongfully breached by the defendant to be the full compensation provided in the contract. But here there is no opportunity for the application of such rule of damages. The complaint did not allege noncompliance and excuse therefor by reason of wrongful discharge, but instead the complaint expressly alleges the performance of the contract and fails to set out any excuse for nonperformance. Wrongful discharge was neither alleged nor proved, and that issue could not be tried under the pleadings. Only the fact of substitution of attorneys was shown in evidence, without any reason therefor being shown. The evidence did not show performance of the contract set forth in the complaint. If the plaintiff in a suit on a contract pleads performance, he must prove it. Proof or excuse for nonperformance would not enable him to recover on such a pleading, and, if the plaintiff did not perform the contract, but relies on the conduct of the defendant as an excuse, he must set forth the excuse in his complaint. Daley v. Russ, 86 Cal. 114, 117, 24 P. 867; Peek v. Steinberg, 163 Cal. 127, 133, 124 P. 834. Plaintiff must recover upon the cause of action alleged in his complaint, and not upon some other which may be developed by the proofs. Johnson v. Moss, 45 Cal. 515, 518; Mondran v. Goux, 51 Cal. 151, 152; Owen v. Meade, 104 Cal. 179, 182, 37 P. 923; Kredo v. Phelps, 145 Cal. 526, 528, 78 P. 1044. Plaintiff’s testimony does not show that he made any objection when the substitution was ordered in open court upon the suggestion of another attorney. Silence implies consent, and consent would prevent any right of action.
Respondent relies upon the rule that the order denying a motion for a nonsuit will not be reviewed upon appeal upon any ground not precisely and specifically stated in the motion for nonsuit, or where no ground is sufficiently stated, and insists that variance between the pleadings and the proof was not provided at the trial as ground for a nonsuit. We have examined the entire record and the plaintiff’s motion for argument and nonsuit, and conclude therefrom that the question of variance between the pleadings and the proof was substantially raised on the motion for nonsuit.