60 P. 761 | Cal. | 1900
Lead Opinion
The appeal is from the judgment and from the order denying a new trial. Defendant Hart, on February 24, 1892, executed to plaintiff Goad a written contract, wherein, for value received and for services rendered by the said Goad, the defendant assigned to him ten thousand dollars of his fee in the Blythe estate contest, "the ten thousand dollars to be paid out of the first moneys collected on my fee." At the time of the execution of this contract there was existing between the defendant Hart and James Crisp Perry, guardian of the person and estate of Florence Blythe, who was at that time a minor, a contract by which, for his services to Florence Blythe in the matter of the litigation over the estate of Thomas Blythe, deceased, the said Hart was to receive twelve and one-half per cent of the value of the estate of Thomas H. Blythe which might be received by Florence. Thereafter the estate of Thomas H. Blythe was distributed to Florence, and she, having attained her majority, ratified the contract executed upon her behalf by her guardian, and *200 granted, transferred, and conveyed to the defendant Hart twelve and one-half per cent of all the estate of Thomas H. Blythe, deceased, of every kind and nature. The agreement further provided that Florence Blythe might at any time before the first day of May, 1897, pay to the defendant Hart twelve and one-half per cent of the value of the property, and upon such payment Hart would retransfer to her all his right to the property, under the deed and agreement. Hart accepted this contract in full satisfaction of his claim. After the date of this agreement plaintiff made demand upon Hart that he pay to him the sum of ten thousand dollars within a reasonable time, and, upon Hart's failure so to do, instituted this suit. Defendant interposed a demurrer that the complaint did not state facts sufficient to constitute a cause of action, and that there was a defect of parties defendant in that Florence Blythe was a necessary party to the action. The court overruled the demurrer, and for answer defendant alleged that the ten thousand dollars was payable to Goad out of the first moneys by him received; that he had received no money, but only an interest in real estate; that the interest was transferred on condition that Florence might at any time before the first day of May, 1897, pay to the defendant twelve and one-half per cent of the present value of the property, and that in such event it was the defendant's duty to reconvey the same to her; that the time had not expired, and that therefore the action was prematurely brought. It was further alleged that the contract was against public policy and good morals, and without consideration.
We think the complaint states a cause of action. The contract between Goad and Hart called for the payment by Hart of ten thousand dollars out of the first moneys by him received, and assigned to Goad so much of the prospective fee. There was thus an equitable lien created on the fee in plaintiff's favor to that amount. (Walker v. Brown,
The contention that the contract was without consideration and against good morals and public policy scarcely merits a passing notice. It appears without conflict that defendant Hart asked the assistance of plaintiff in procuring a loan from Montgomery, promising him for the services that he might render in that behalf to execute the contract here in question. Goad was Montgomery's attorney. He submitted Hart's proposition fully to his client, both as to the proposed loan from Montgomery and the proposed compensation to him, Goad. Montgomery was fully advised in the matter, and under these circumstances made the loan. Goad was not to receive, and did not receive, any compensation from Montgomery, but, as was usual in such transactions, looked to the borrower. There was nothing secret, devious, or underhand in the transaction. It was all open and above board, and with the approval of Montgomery. The naked statement of the facts is a complete disposition of appellant's contention.
Plaintiff having died pending this appeal, and his executrix having been substituted in his place and stead, it is ordered that the order of the superior court denying defendant's motion for a new trial be affirmed, and that the judgment appealed from be affirmed in favor of the substituted plaintiff, Ella Goad Hooker, as executrix of the estate of W.F. Goad, now deceased. *202
Temple, J., and McFarland, J., concurred.
Hearing in Bank denied.
Beatty, C.J., dissented from the order denying a hearing in Bank, and filed the following opinion on the 25th of April, 1900:
Dissenting Opinion
I dissent from the order denying a rehearing of this cause and from the judgment of the Department upon the ground that the suit was premature. There was not, in my opinion, anything due upon defendant's contract when the action was commenced.
