102 Cal. 370 | Cal. | 1894
Appellant insists that this action is prematurely brought, and the conclusion reached by the court as to that contention is determinative of the litigation. The facts of the case may be briefly stated: On the eighth day of January, 1888, the appellant entered into an agreement with certain heirs of Charles Lux, deceased, whereby he engaged to give his services as an attorney to them throughout the administration of the estate of said deceased, and bear his own expenses in so doing, and, as compensation therefor, said heirs conveyed to him three per cent of their interest in said estate. On the fourteenth day of January, 1888, the appellant and the respondent entered into an agreement whereby said respondent agreed to aid the appellant in carrying out his agreement with said heirs, and said appellant granted to him two-fifths of the amount realized by him under his agreement with the heirs, after defraying the actual disbursements of appellant in fulfilling his obligations under said agreement. The administration of the estate of Charles Lux, deceased, is still pending and unclosed, but, as the appellant has
For the purpose of determining whether or not respondent Krumb’s cause of action had accrued at the time he filed his complaint, it is necessary to consider the contracts entered into between these various parties, for it is upon the interpretation and construction of these contracts that plaintiff’s right to a present cause of action is weighed and measured. If plaintiff’s contract is an entirety, and he has bound himself thereby to give his services to defendant during the entire administration of the estate, it would seem that no recovery could be had upon the contract until he had rendered all the services stipulated to be performed.
Defendant agreed with the Lux heirs, in consideration of three one-hundredths of their interest in the estate, that he would “perform any and all legal services necessary and proper to be performed in and about the said estate of Charles Lux, deceased, as the attorney of said parties of the first part, in representing them and their several interests therein, to and including the final settlement of said estate, and the final distribution thereof; and it is further agreed that said party of the second part shall faithfully perform his duty and all legal services for the benefit of said parties of the first part .... and that all his personal expenses and outlay in and about said services shall be borne by him individually, and at his own costs without charge to the said parties of the first part.” Under these provisions of the contract it cannot be questioned but that the defendant bound himself to render his services to the Lux heirs as long as the estate remained in course of administration. The contract entered into between plaintiff and
The defendant, Campbell, having bound himself to render his services during the entire progress of the administration of the estate, we see no escape from the conclusion, in view of the plain provisions of this contract, that plaintiff also bound himself to render his services to defendant during the entire progress of the administration of the Lux estate, and that estate is now in progress of administration. Final distribution has not yet been had, and it does not appear from the record at what time in the future that event will occur. Reading the two contracts together, it must be held that the plaintiff’s term of employment ends only when defendant’s labors are no longer demanded by the Lux heirs under his contract with them.
Is plaintiff entitled to a partial payment as his term
After a careful consideration of the various terms of these contracts we are forced to the conclusion that the one to which plaintiff is a party must be considered as an entirety, and that plaintiff must carry out and perform all the covenants upon his part to be performed as a condition precedent to his right of recovery. It is apparent that defendant is entitled to his compensation as the administration progresses. His contract expressly so provides, but we look in vain for any thing in the agreement indicating such a purpose as between these two parties litigant. It is not possible to see how the amount of plaintiff’s compensation can be ascertained until the administration is closed. His compensation is a percentage of a net amount, and that net amount is impossible of ascertainment until the estate is finally settled and distribution had. This net amount is ascertained by deducting from defendant’s compensation in gross the amount of his personal expenses incurred in the conduct of the business of his clients, the Lux heirs. The estate still being in the probate court, not fully administered, the amount of defendant’s personal expenses is an unknown quantity, for only future events can determine what those expenses will be. We have no definite knowledge as to the true status of this estate. We know not what proportion of the estate has been administered upon and passed from the jurisdiction of the probate court by its various decrees of distribution. Perchance the defendant has received practically his
Again, plaintiff’s services to defendant were to extend throughout the accomplishment of a certain undertaking, to wit, the administration of an estate. It does not appear to be contemplated by the contract that he was to receive his compensation in advance. The amount he here seeks to recover may form the bulk of his compensation, and yet the bulk of his labor may be before him. Upon a recovery here for services not yet performed, his future ardor for labor in the interests of his employer would probably be dulled, and possibly his further valuable services be lost entirely. Defendant could hardly be required to pay for services not yet performed, and then look to the courts for redress in case his employee should forsake his employment. We see no question of authority or precedent here involved. The whole matter appears to be entirely one of the true construction of the terms of this contract.
For the reasons stated, we think the contract, both as to the subject matter and the consideration, is entire; and that the compensation that plaintiff is attempting to recover in this proceeding has not been earned, and
The action is prematurely brought, and the judgment is reversed, and the cause remanded.
Harrison, J., and Paterson, J., concurred.