32 Cal. 231 | Cal. | 1867
This is an action to recover the value of professional services rendered by plaintiff as an attorney at law to defendant. The Court refused to give to the jury the following instruction asked by defendant: “If the jury find that there was a mutual understanding between plaintiff and defendant that only in the event of recovering to the extent of the exteripr boundaries, and finally securing those outside lands, the plaintiff was to receive as his compensation a portion of the profits, either in land or its worth, from the plaintiff, then plaintiff would not be entitled to recover in this suit fees for that service in event of failure so to recover the lands.” The Court, at request of plaintiff', stated substantially to the jury that such an agreement as referred to in the said instruction refused was void under the Statute of Frauds unless in writing, and added: “ But if you find there was such an agreement in writing, then the plaintiff cannot recover in this action for such services unless its terms have been performed, abrogated or modified.” The refusal of the defendant’s instruction, and the charge to the jury that such an agreement would be void under the Statute of Frauds unless in writing, are the rulings principally relied on to reverse the judgment. We shall not discuss, the question whether there would have been error in the action of the Court had the evidence been different; for we think the respondent clearly right in the position, that there is no evidence in the record requiring any instruction at all on the point. It affirmatively appears that the record contains all the evidence on the point, and there is no evidence which would justify a jury under any circumstances in finding
On cross examination by plaintiff’s counsel, the defendant testified as follows :
“ I want to know what evidence has Tompkins, or any person, of his having a future interest in this rancho ?”
“ He has got no interest in this rancho except an implied verbal understanding with him that he should share in it.”
“ Has Tompkins any paper now to that effect ?” ■
“ Ho.”
“ You were quarreling about the matter of fees ?”
“ We disagreed about the prices marked on this paper.”
“ Why were you disagreeing about these figures if he had an interest in this land ?”
“ I told him, as I told you, I always had it in my mind that up to the decision and the restitution in case Ho. 5, I paid him for his services, and I thought he was satisfied, and all outside of that was to be considered as property acquired, and*234 I was, as I supposed, to get an equal share with him and Sharp.”
This is all the testimony of the defendant upon the point. He states no contract with Tompkins, verbal or written. He expressly says there was no written contract. He says, directly, that Tompkins “ has got no interest in this rancho, except an implied verbal understanding with him that he should share in it.” He would, perhaps, like to have it inferred from this exception that there was some sort of an implied understanding, although he seems careful not to say directly that there was. It is not easy to understand what defendant means by “ implied verbal understanding,” introduced by way of exception. He evidently did not claim that there was any express understanding, and there could be no contract of the kind supposed unless it was express.
His last answer merely stated what he had before said to Tompkins while disputing the amount of his charges, and afterwards repeated to his counsel. It affirms nothing as a fact, except that he had so stated before. Now, if there was any contract, verbal or written, upon the subject, Tompkins and Mahoney are the very parties to know it, and Mahoney went upon the stand to testify in his own behalf—to make the very best case in his own favor that the facts within his knowledge would admit of. If he failed to state categorically and directly that there was a contract or understanding upon the subject favorable to himself, or what the contract was, we may safely conclude that there was none. He would not leave a matter so important to his interest to be inferred from hints and vague inuendoes, He did not state any. Bliss also testified that on one occasion Mahoney, in the presence of plaintiff, said “ that ‘ Tompkins was in on the exteriors,’ and Tompkins made no reply thereto.” This, in connection with the testimony that Tompkins devoted several years to the service of Mahoney in litigation about the rancho, without any express agreement, as to compensation, is the testimony upon which the jury was expected to infer the contract supposed in the instructions. The loose and vague remarks quoted from
The Court might have safely instructed the jury, that upon the testimony, it was unnecessary for them to consider the question. Except as to the amount, the jury found the only verdict that could properly have been found on the evidence, and if the plaintiff was entitled to recover at all, the instructions given and refused could not affect the amount. The case is clearly within the principle of Lyle v. Rollins, 25 Cal. 438, and Carpentier v. Gardiner, 29 Cal. 160, and a finding upon the evidence in this record, that there was a verbal or written contract or understanding between the plaintiff and defendant of the nature indicated in the instructions under consideration, would be set aside as unsupported by the evidence. It could make no possible difference to the defendant, therefore, whether the instructions were given or refused, and he could not have been injured. (Terry v. Sickles, 13 Cal. 429.)
The evidence is clearly sufficient to justify the jury in finding for the plaintiff to the amount of the value of the services rendered.
The complaint is sufficient to justify the admission of the evidence. It is quite general in its language, but the defendant, as he was entitled to do, demanded and received a bill of particulars.
We find nothing further in the record requiring comment, and nothing to justify a reversal of the judgment.
Judgment and order denying new trial affirmed.
After the decision of this case by the Supreme Court, and before the remittitur had been issued, the Judge of the United States District Court for the District of Oregon, who, by the request of one of the Justices of the Supreme Court of the United States, was holding the Circuit Court of the United States for the District of California, signed a citation upon a writ of error from the Supreme Court of the United States
Application for a remittitur. The only question on this application is, whether the Judge of the United States District Court for the District of Oregon, while holding the Circuit Court of the United States for the District of California, upon the request of the Judge of the Supreme Court of the United States assigned to that circuit in pursuance of the Act of Congress, is authorized by the Acts of Congress to sign a citation upon a writ of error from the Supreme Court of the United States to this Court, and to take and approve of the security required in order to make the writ of error a supersedeas and operate as a stay of execution upon the judgment to be reviewed. It is conceded that the Judiciary Act of 1789 confers no such authority upon the District Judge, for, by the express terms of the Act, the citation must be “ signed by the Chief Justice or Judge or Chancellor of the Court rendering or passing the judgment or decree complained of, or by a Justice of the Supreme Court of the United States.” (1 Stat. at Large, U. S., 86, Sec. 25.) And by section twenty-two the security is to be taken by the Justice or Judge signing the citation. But section two of “an Act to provide Circuit Courts for the Districts of California and Oregon and for other purposes,” approved March 3, 1863, provides, that, “ There shall hereafter be Circuit Courts held for the Districts of the States of California and Oregon by the Chief Justice, or 'one of the Associate Justices of the Supreme Court of the United States assigned or allotted to the circuit to which such districts may respectively belong, and the District Judges of said district, severally and respectively, either of whom shall con
The argument is, that a Justice of the Supreme Court of the United States is the Circuit Judge; that a Justice of the Supreme Court is authorized to sign citations under the provisions of the Act of 1789; that the Act of 1863 authorizes the Judge requested to hold the Circuit Court in such district “ to exercise all the powers of the Judge of such circuit, within and for such district, during the time named in such request,” and as the Justice of the Supreme Court is Judge of the Circuit Court and is authorized to sign citations, the Justice of the District Court, while exercising “ all the powers of the Judge of such circuit,” must also have power to sign cita
Ordered that the remittitur be issued.