*1 Apr. 2, In Bank. F. No. 16285. [S. 1942.] E. SALOPEK, Appellant, C. v. ROBERT SCHOEMANN al., Respondents.
et Symonds Appellant. Torregano & C. Stark and M. Respondents. and G. Simi for
C. N. Vavuris A. Pey- assignee of J. Maxwell SHENK, J. The plaintiff, *2 action lien ser, attorney, commenced to foreclose a this Robert agreement defendant asserted the written under dis- pay attorney was Schoemann to for services. The day agreement was on the same charged by his client the the signed. lien court the enforcement the to The decreed of to the performed extent the reasonable value of the services of by plaintiff it appeal the is contended time of On lien that the was entitled the enforcement of the to to the full amount of the contract. exception
With trial court’s one the correctness of the findings dispute. is not in on material issues The shows record that 2, 1937, Max Schoemann died testate on June a resident of city county of or Francisco, leaving the and San wife no defendant, issue. next brothers, His of kin were two the Schoemann, Robert York; who resided in New Otto Schoe mann, Switzerland; who resided in sister and a Gertrude Horn, Germany. in holographic who resided The will was and was on 13, executed December 1934. It that as showed of that date the decedent married, provision was in and the will was bequest made for a the By to wife. its the was terms residue distributed, to be percent 10 the Otto; brother 20 per to Robert; cent percent Gertrude; brother sister to percent children of ten Otto; percent fifteen percent respectively Eugene James Schoemann, chil dren of Robert Schoemann. Schoemann, cousin, Sam M. California, who lived in designated was as executor and was left 5 percent of the estate for his services. The will offered probate for disclosed certain interlineations and in alterations pencil. The of declaration marital status was stricken. The bequest notation, wife was marked out with the " July 7, died 1935.” figures Jennie (20%) The words and “ Twenty percent” bequest in the to Robert Schoemann were drawn through, fig without insertion of substituted ures. bequest The sister apparently by was raised alter percent ation to 30 of the residue. testator did initial or sign the alterations. The, present 8, trial court action found that on June
1937, defendant M. Sam Schoemann petition pro- filed for him letters testa- and for issuance
bate of the will 16, defendant Robert mentary or about June ; that on Peyser as his Maxwell retained J. Schoemann 1937, agreed pay 21, writing dated June contract in the of settle- event of his share of estate percent 33% A event trial. contest percent ment or on the name of was will filed by written day 21, 1937. Robert Schoemann June On and sub- agreement the retainer Peyser, rescinded notice to probate proceedings. in the another stituted 22, probate noticed for June hearing petition for consent to filed his 1937, day Robert Schoemann on reserving right apply probate erasures, court “a alterations construction of 2, 1937, July the will was in the On interlineations” will. testamentary Sam issued to probate and letters admitted to petition filed á July 14, M. executor Schoemann. On the correct construction of the will for instructions as to proper inheritance computing taxes and agree- January 19, 1938, an estate. On administration of the percent Horn should receive ment filed that Gertrude *3 should estate, and Robert Schoemann Otto petition An 12 estate. order on percent of the each receive February agreement. on this On instructions based assignee of commenced the 23, 1938, plaintiff, Peyser, Robert percent to lien on of present action foreclose the 33% restraining and obtained order Schoemann’s interest 28, 1938, February decree interest. On distribution of that Robert Schoemann sub- ordering distribution to was entered 12 restraining The ject action herein and order. approxi- interest of Robert Schoemann amounts to percent $15,000. mately there foregoing the found that were
In court addition state- “false, negligent representations or or fraudulent no or facts Robert as to law ments defendant of claim to receive a share involved said defendant’s in- deceased, purpose of Schoemann, Max for the estate of Peyser as retain defendant said J. Maxwell ducing said all.” The court any other or at his or for held Sam M. the defendant a lien on the funds declared Schoemann, ex- Schoemann for distribution to be the reasonable value tent the court found to $300 of which The discharge. the time of of services
153 employment contract of amounts percentage provided $5,000. quoted foregoing contention that plaintiff’s It is the entirely attorney’s only that the finding favor and is can drawn therefrom is that was no conclusion that be there employment ; rescission justification for the of the contract of discharged consequently that he was without cause and was agreed amount (citing entitled to recover the full fee Bennett, 392; Trescony, Baldwin v. 4 Webb v. 76 Cal. Cal. ; Savings Bank, 621 Pac. Bartlett v. Odd Fellows 79 [18 796] 743, 12 Rep. 139]; Culley, Cal. 218 Pac. Am. St. Kirk v. [21 994]; Yalen, 546, Pac. Cal. Elconin v. 208 Cal. [261 ; Pac. A. & L. Ltd. v. Zurich G. Ins. Co. Kins 791] [282 ler, (2d) (2d) 913]; Superior Cal. Echlin v. P. [81 Court, (2d) (2d) 13 Cal. 368 at 375 124 A. P. L.
719].) quoted defendants contend that the finding is not supported by the evidence; that ample record discloses justification attorney’s discharge, event only question is the reasonable value his services to the time discharge.
There divergence seems to be no of authority to the if an attorney effect that discharged for sufficient cause is entitled to no more than the reasonable value of his services prior rendered important and con- trolling question appeal is whether the quoted finding supported by the evidence. When considered firiding absolving fraudulent purpose or intent in inducing contract, supported it is' by the evidence; but if it finding be deemed a that his conduct justify would not it is unsupported.
Peyser testified that when Robert Schoemann consulted him and submitted him, towill he advised that the proper procedure would be file a contest of the will; that if the contest was successful Schoemann would be entitled to one- estate, third of the but the contest was unsuccessful and the court determined that the alterations should stand as *4 in accordance with intention of the testator to cancel the bequests stricken out, percent of the estate go would into the residue he and would still percent have 13 of the estate. He testified that he also advised Robert Schoemann that if contest was successful bequests his sons’ would not be affected. It appeared that signed before Robert agreement in- he Peyser formed that he would “rather be killed” than see Peyser by the will. also money left to them boys lose prelim- file the contest as that intention was to
testified interpretation of the will. later to ask for an inary step^and signed by con- Robert Schoemann agreement However agrees insti- following: party [Peyser] to “Second tained judgment proceed- actions and final all prosecute and tute invalid the will of ings to declare and defeat necessary Party First all Schoemann, deceased, and to Max recover en- legally Max Schoemann to which ha of the estate of titled.” dispute that when became ac- appears beyond
It his client’s do the facts and with quainted with receiving from prevent his two sons nothing would agreed in which he prepared he a contract legacies, their necessary “to judgment proceedings all de- prosecute to final Schoemann, of Max de- defeat invalid clare ’’ should have known that the will Peyser knew or ceased. nothing the sons receive there- would invalid were declared that he Robert Schoemann would Peyser also advised under. estate, he administrator of when knew appointed have not of the State California. a resident that Robert was filed the contest on behalf of Robert prepared and Peyser also alleged to grounds of contest were be in which Schoemann body, mind, infirmity of mind lack of unsoundness by striking a execution, and “that said document line due ‘(20%) Twenty figures: percent’ through the words testator; that the said law and witnessed violation bequest petitioner, to be purporting alteration said deceased, not the act the said persons certain influence of whose of undue result but was the contestant.” to this are names unknown agreement signed employment day the theOn Schoemann showed the document to his filed, Robert contract by Peyser; had that he been misinformed They told him sons. they nothing, would receive were defeated the will that if administrator because re- appointed not be he could that day That same Robert Schoemann con- York. New sided verify lawyer these statements and was another sulted misguided misinformed and him. Peyser had advised the notice of rescission. immediately gave He pursued procedure protecting to be true It is for the generally interest to decide. client’s Kinsler, supra.) Co., L. Ins. Ltd. v. But A. & (Zurich G. *5 the client control over that the has no does not mean this objectives adopted. As by procedure the attained be to be properly could applied present case attorney nothing which to do would in effect direct the and did Notwith- legacies of his sons will. jeopardize the under the Pey- part client, standing this declared client whereby he bound himself his ser charted a course if a conclusion procedure carried to successful to a which obligated at- the purpose. defeat that The contract would necessary have torney steps the invalidated. take the will respect In this client he misinformed and misdirected his had concerning legal procedure effect of facts and of the adopted. which he had At the trial testified that in procedure in inten- prescribing filing contest his merely appearance tion was an “to make court” or “to a settlement.” But this excuse force intention would not appearances contrary resulting the obvious from attorney. advice and course of conduct fact a may upon different have course been decided at a later date Peyser’s if employment had continued would not affect right of the client rescind at once. right He had to act immediately act upon being properly and did so advised that invalid, declared contemplated were as the con- employment tract of just filed, rights the contest rights of his jeopardized. sons would be If attor- ney misstates the effect of procedure facts or of to his client through ignorance, either by mistake, carelessness or pursues advice indicates and then a course of action which unquestionably contrary would lead results the client’s proper declared and objectives, the client is not attorney’s bound to continue the employment. Indeed, the may discharge client at time unless at- torney’s power coupled with an interest. No such interest appears (Sec. 284, here. Proc.; Gage Atwater, Code Civ. v. 581]; Cal. Pac. Superior Court, Todd v. 181 Cal. [68 938].) Pac. 7 A. L. if, But here, has as entered compensate into a contract to on a con-
tingency basis and discharges him before the services have completed, been he takes the chance that attorney may claim and establish that discharged he was without sufficient cause. On other if, here, hand it as develops dis- charge justified, has no to complain cause fully and is protected by payment of the reasonable value of his services prior discharge. rendered to his finding taken finding question when as a that the lead to the conclusion attor
would cause, incompatible ney with the facts was without sufficient conflict the evidence. facts as established without Those only finding that there was for the support sufficient cause respect may properly Our this conclusion serve finding finding contrary (Const. of the trial court. *6 956a, Proc.) trial 4¾; Code Civ. The VI, art. sec. § correctly plaintiff that en however, concluded the court, extent the lien to the of the reasonable value titled to enforce by attorney to the date of his performed of the services judgment affirmed. is The J., Edmonds, J., J., Carter, and concurred.
Curtis,
J., Concurring.
The judgmentof the trial
GIBSON, C.
compensation
ground
that
be affirmed
court should
contingent
a
attorney employed under
fee contract and
anof
by
cause
be measured
reason
discharged without
should
by
not
performed,
the fee fixed in
able
of
services
value
allowing recovery
this state
of the
cases
the contract.
overruled.
fee
such circumstances should be
contract
under
full
(W
Trescony,
796];
v.
76
621
Pac.
Zurich
Cal.
[18
ebb
Co.,
Kinsler,
(2d) 98,
Ins.
Ltd. v.
12 Cal.
102
& L.
G. A.
913].)
majority
jurisdictions
It is true that a
of
(2d)
P.
[81
(See
L.
recovery.
in 136 A.
R.
cases collected
permit such
242.)
growing minority
and
hold that under a
strong
aBut
attorney may
only
fee
recover
contingent
contract
by
prior
to dis
value of services rendered
reasonable
(2d)
Myers,
396,
A.
136
charge. (Cole
The relation of
client
one
trust,
dignity
integrity
legal pro-
dence and
and the
fully pro-
demand- that the interests of the client be
fession
Hill,
(Tomblin
941],
tected.
v.
206 Cal.
Pac.
[275
Law,
1 Thornton, Attorneys
238.)
public
at
confi-
Without
legal
depen-
of
profession,
the members
dence
upon
attorney
dealings
dent
absolute fairness
between
client,
proper
cannot
administration
courts
function
justice.
of
relationship
And inherent in
between
entirely
rely
almost
client
the fact
the client must
upon
good
faith
can make an
alone
who
legal right
informed estimate
value of the client’s
expense
necessary
and effort
it.
to enforce
These con-
given
accepted
siderations
rise
generally
have
rule
may discharge
a client
with-
at
time with or
(See Gage Atwater,
out
v.
;
cause.
Cole Conn. 223 A. 136 A. L. “An : at law an officer of court; min 226] justice. ister of compensation He is entitled to fair for since, but services, highly because of the confidential relation ship, the client may discharge just cause, even without he compensation should receive reasonable for the work he has up done to that not the point, agreed probably fee he continue earned he been allowed to
would have had attorney. He will employment. rule This unfair to done; position he has compensation receive fair what pay him to receive as an officer of does not entitle the court ’’ ment for not rendered. These considerations services has case at bar where compelling application are in their trial upon finding of ease, rule of the Zurich under the cause, the would court that the without the reason $5,000 be of recover for a work few hours’ found only $300. able value of
Traynor, J., concurred. Apr. 2, In 16661. Bank. F. No. 1942.]
[S. v. PLUMMER, Petitioner, THE SUPERIOR GERTRUDE E. SAN AND OF THE CITY COUNTY COURT OF al., Respondents. et FRANCISCO McCarty and Francis Petitioner. Picard Albert *8 Phillip Respondents. Barnett