24 P. 893 | Cal. | 1890
The plaintiff is an attorney at law, and brought this action to recover a balance of $1,000, alleged to be due him from- the defendant for professional services. The ease was tried by a jury, and the trial resulted in a verdict and judgment in favor of the plaintiff for $1,000. The defendant appeals from the judgment, and also from an order denying his motion for a new trial. The complaint consists of two counts for services rendered in defense of an action prosecuted by the Lake Valley Railroad Company,.a corporation, against this defendant, to condemn a right of way over defendant’s land, and in conducting negotiations for a compromise of that action. The first count is for the recovery of quantum meruit for such services, alleging them to have been reasonably worth $1,500, and that only $500 had been paid, and praying judgment for the balance of $1,000. The second count is for the recovery of a contingent fee of $1,000 in addition to the $500 admitted to have been paid upon an alleged express agreement between the plaintiff and defendant, to the effect that plaintiff was to defend the action to condemn defendant’s land, and at the same time to assist defendant to compromise that action, by selling to the plaintiff therein the land over which the right of way was sought; and in case the compromise failed, and the defense should be unsuccessful, the plaintiff was to commence proceedings to forfeit the right of the railroad company to operate the proposed road, on the ground of nonuser, if that could be proved. For all these services the defendant was to pay the plaintiff $500 absolutely, and the further sum of $1,000, on the condition of success, either in negotiating a compromise by sale of the land, or in the defense of the action, or in procuring a judgment forfeiting the franchise of the railroad company. As a performance of this condition it is alleged that, by the advice and assistance of the plaintiff, a compromise of the action to condemn
1. The appellant’s counsel insist that the court erred in overruling their objection to these questions. I think the objection should have been sustained, for, while there was an issue as to the value of the actual services alleged in the quantum meruit count, there was no issue as to the value or reasonableness of the conditional or contingent fee which is the subject of the second count. An obligation to pay a contingent fee is necessarily the creature of an express agreement, and" is not implicated in the mere rendition of valuable services by request, as is the unconditional obligation to pay the reasonable value of such services. Nor does the amount of a contingent fee depend upon, or necessarily coincide with, the value of the services for which it is to be paid; nor in the absence of fraud upon its reasonableness. Whether or not the plaintiff was entitled to recover a contingent fee of $1,000 depended entirely upon proof of the express contract alleged in the second count, and performance of the express conditions of that contract, on his part. That the evidence objected to may have confused the jury to the prejudice of the defendant seems probable from the
2. Counsel for appellant further contend that the court erred in giving to the jury the instruction numbered 14, of which the following is a copy: “It is admitted that plaintiff did render some service, and if you do not find that there was an express contract, as stated by either plaintiff or defendant, the services being admitted, also it is admitted that plaintiff has been paid $500 for his services. If you are satisfied that plaintiff’s services were worth more than the $500, you will render a verdict for plaintiff for any amount above $500 that you find such services to be worth, not exceeding the sum of $1,000.” I think this instruction erroneous for the reason that there was no evidence tending to prove that the services actually rendered “were worth more than $500,” or any sum whatever. The testimony of Messrs. Wood and Reddy was expressly applicable to a contingent fee alone, in answer to the question, What would have been a reasonable contingent fee under the circumstances stated? And the circumstances stated in this hypothetical question included, not only the conditions upon which it was alleged, in the second count, that the contingent fee was to be paid, but others not alleged in either count. Messrs. Wood and Reddy expressed no opinion as to the distinct value of the services actually rendered. Mr. Bennett expressed the opinion that “$2,000 would be a reasonable attorney’s fee in the case”; but this opinion is not based solely upon the services actually rendered, but partly upon the consideration of plaintiff’s “agreement to follow the case throughout, into whatever court it might be taken, and his agreement to prosecute quo warranto proceedings for a forfeiture of the charter of the Lake Valley Railroad Company in case of a defeat in the condemnation case.” Yet it appears that no services were rendered under these parts of the agreement. Mr. Bennett’s opinion was evidently intended to be applicable to the second count alone; but, whether so intended or not, it is not applicable to the first count. Upon what evidence, under the fourteenth instruction, was the jury to become “satisfied that plaintiff’s services [actually rendered] were worth more than $500,”
We concur: Gibson, C.; Foote, C.
For the reasons given in the foregoing opinion the judgment and order are reversed and a new trial granted.
I dissent: Beatty, C. J.