This is a suit by plaintiff below, respondent’s testate, an attorney at law, against the defendant below for a balance of $1,000 claimed as an attorney’s fee. The complaint is in two counts, the first in special assumpsit on the contract of employment, alleging full performance thereunder, with the unpаid balance above stated due. The second count is in quantum meruit on the same transaction and for the same amount. The answer is a general denial with specific allegations admitting employment and certain services, but claiming full payment thereof by the sum of $350 admittedly received by the plaintiff.
Thе contract found by the court to exist between the parties is set forth in an unexecuted writing prepared by the attorney, which reads as follows:
*504 “Los Angeles, California, September 12, 1922. “Messrs. B. F. Culley and Ovid D. Bohlen,
“Black Building,
“Los Angeles, California.
“Gentlemen:
“Re: People vs. B. V. Culley and Ovid D.; Bohlen (Re: Indictments Nos. 18311 and 18491).
“In order to reduce our understanding regarding sеrvices 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 $350.00 each, to include preparation for trial now set for November 1st, 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 $250.00 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 consolidatеd.
“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 $1,000.00 from each of you. This fee will eliminate all other fеes excepting the ones already paid. It is understood and agreed that each of you will, on or before November 1st, 1922, procure Cashiers’ Checks', each payable to yourselves and endorsed in blank and deliver the same to William A. Schreider, Attorney at Law, in escrow with him, to be delivеred 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
“E. E. Kirk
“I fully understand and agree to all of the terms of the above contract. Dated September 12, 1922.
(not signed) -
“B. F. Culley.
“I fully understand and agree to all of the terms of the above contract. Dated September 12, 1922.
(not signed) -
“Ovid D. Bohlen.”
*505 The gist of the findings in this connection is as follows: “That plaintiff had fully performed the contract on his part to be performed as attorney for defendant until his said discharge and was at all times ready, willing and able to continue and perform his contract and had it not been fоr said wrongful discharge, plaintiff could have obtained the dismissal of said defendant in said criminal actions without trial; that plaintiff was prevented from fully performing his contract in obtaining the discharge of the defendant in the criminal cases of said Gulley and Bohlen by the acts of said Gulley.”
At the conclusion оf plaintiff’s case, defendant moved for a nonsuit upon the ground of material variance between the evidence adduced and the cause of action pleaded. This motion was denied. Some evidence was later introduced by the defendant, but nothing appeared to chаnge the facts upon which the claim of variance was predicated. Judgment passed for plaintiff for the full amount claimed and defendant has appealed under the alternative method.
The claim that the evidence received and findings made thereon will not support the cause of action made by the pleadings must be sustained. A client may at any time discharge his attorney, unless the attorney has a vested interest in the subject matter of the litigation. This is true not alone under the law of agency, but is supported also by a well understood rule of public policy. The existence of a contract for a contingent fee does not change the rule
(Todd
v.
Superior Court,
To plead a specific contraсt of employment calling for legal services at a fixed price and fully performed, then
*506
undertake to sustain it by proof of a contract for a contingent fee, a wrongful discharge of the attorney, and the later happening of the contingency, is to substitute an entirely new issue for the оne pleaded and such action, if allowed, would in all probability work an injustice to the defendant by prejudicing his right to defend against the extraneous issue. The rule is well understood that a recovery on proof of excuse for nonperformance cannot be had on an allegatiоn of full performance
(Daley
v.
Russ,
In
Owens
v.
Meade,
It is true that an attorney upon his wrongful discharge under a partially performed contract may sue for damages and in some instances the full contrаct price may be allowed as a measure of such damages
(Webb
v.
Trescony,
There is no substance available to respondent in the finding that the indictments were actually dismissed after institution of the present suit and beforе a trial
*507
thereof was had. A plaintiff’s cause of action must have arisen before the filing of the complaint
(Landis
v.
Morrissey,
Addressing ourselves to the second count of the complaint, it seems appropriate at this time to make the first exercise of the power conferred upon this court by the recent amendment to our constitution and the statutory enactment designed to put such power so conferred into practical operation. A new section, numbered 4%, was added to article VI on November 2, 1926, which reads as follows: “In all cases where trial by jury is not a matter of right or where trial by jury has been waived, the legislature may grant to any court of aрpellate jurisdiction the power, in its discretion, to make findings of fact contrary to, or in addition to, those made by the trial court. The legislature may provide that such findings may be based on the evidence adduced before the trial court, either with or without the taking of additional evidence by thе court of appellate jurisdiction. The legislature may also grant to any court of appellate jurisdiction the power, in its discretion, for the purpose of making such findings or for any other purpose in the interest of justice, to take additional evidence of or concerning facts occurring at any time prior to the decision of the appeal, and to give or direct the entry of any judgment or order and to make such further or other order as the case may require.”
Later and on July 29, 1927, there became effective section 956a of the Code of Civil Procedure as follows: “In all eases where trial by jury is not a matter of right or where trial by jury has been waived, the supreme court or a district court of appeal may make findings of fact contrary to, or in addition to, those made by the trial court. Such findings may be based on the evidence adduced before *508 the trial court either with or without the taking of evidence by the court of appellate jurisdiction, pursuant to such rules as the supreme court may prescribe.
“The said courts of appellate jurisdiction may, for the purpose of making such findings or for any other purpose in the interest of justice, take, pursuant to such rules, additional evidence of or concerning facts occurring at any time prior to the decision of the appeal and may give or direct the entry of any judgment or order and make such further or other order as the case may require. This section shall be liberally construed to the end, among others, that wherever possible causes may be finally disposed of by a single appeal and without further proceedings in the trial court, except where the interest of justice requires a new trial.”
These provisions are plain and intended to be effective in broadening the powers of this court and the district court of appeal in the disposition of appeals in eases where a jury trial does not exist as a matter of right, or where, if the right does exist, it has been waived. We are thereby expressly authorized to “make findings of fаct contrary to, or in addition to, those made by the trial court.” We may base such findings either upon the evidence heard in the court below or may on our own account, under such rules as we may prescribe, take additional evidence on any fact occurring at any time prior to the disposition of the appeal. Likewise, we may make and enter a proper judgment ourselves or direct that it be done in the trial court.
It will be noted that under the second count of the complaint in this action a proper cause of action in
quantum meruit
is set forth. It is also apparеnt that no findings of fact thereunder were made by the trial court as to the reasonable value of the legal services rendered by the plaintiff below to defendant. With a finding upon this subject the cause is in proper condition for this court to make or direct the judgment that shall be entered and thе cause thereby finally determined. It is unnecessary to take further evidence, and it is, therefore, unnecessary to await the effective date of the rules upon this subject promulgated by this court. The record is complete as to the services rendered by the attorney, plaintiff below, рrior to his wrongful discharge by the defendant. It has many times been held and is a sound principle of law that a trial judge
*509
in a court of record, who must himself be an attorney at law, has the power, independent of testimony as to value, to appraise the legal services shown by the record in the сause before him to have been rendered. This is the necessary deduction from many cases, among which are the following:
Estate of Dorland,
Estate of Straus,
While expert testimony is clearly admissible, it is not conclusive either upon the jury or the trial court, which has “the unquestioned power to fix the amount to be allowed for attorneys’ fees, without, and independent of, expert testimony.”
(Estate of Dorland, supra; Spencer
v.
Collins,
If the trial court may make an appraisal and adjudicatiоn of value of such services, it must be presumed that appellate courts possess like power and ability so to do. In this cause the contract found to exist between the parties throws additional light on the value of such legal services. The contract provided that in the event of trial of the cause in the ordinary way, without regard to the result thereof, the compensation of the attorney was to be the additional sum of- $250 in each case, or $500 as a total in both cases.
The court, after a consideration of the evidence, hereby makes additional and supрlemental findings of fact as follows: That the reasonable value of the legal services performed by plaintiff below for the defendant between June 1, 1922, and November 1, 1922, was and is the sum of $850, and that the sum of $350 has been paid thereon and the balance due and unpaid on account of such services was and is the sum of $500.
The judgment is general in its terms and could apply to either count. It may stand with proper modifications when supported by the finding here made as to the issues under the second count and a reversal becomes unnecessary.
It is therefore ordered that the judgment be modifiеd so as to read as follows: “It is ordered and adjudged that plaintiff have and recover of and from the defendant the sum of Five hundred (500) Dollars, with interest thereon at the rate of seven per cent from November 1, 1922, together with his costs and disbursements expended in this action which are hereby fixed at $13.10.”
As so modified the judgment is affirmed, the appellant to recover his costs on appeal.
Richards, J., Shenk, J., Curtis, J., and Seawell, J., concurred.