46 Cal. App. 2d 399 | Cal. Ct. App. | 1941
pro tern. — L. E. Dadmun was employed by Inez Watson to represent her in a law suit. After judgment was given in said law suit Inez Watson agreed in writing to pay Dadmun for his legal services. Dadmun assigned to Percival E. Woods the contract and his interest in the money due thereunder. Inez Watson did not pay the money and Woods brought this action to recover. Inez Watson filed an answer, counterclaim and cross-complaint. Dadmun was joined with Woods as a cross-defendant and they filed a joint answer to the cross-complaint in which, inter alia, they alleged :
*400 “ . . . admit that said L. E. Dadmun did assign and transfer to Percival E. Woods that certain written contract entered into upon the part of Inez Watson on or about the 28th day of August, 1936, and signed and approved by Cornelius Kallmeyer, which said agreement was signed by Inez Watson after the rendition of the decree of divorce rendered in said action entitled, Inez Watson vs. John T. Watson, et al., No. D-135555, wherein and by virtue of said agreement Inez Watson did agree to pay to L. E. Dadmun, for his legal services rendered in said action entitled Inez Watson v. John T. Watson, et al., No. D-135555, a sum of money equal to thirty-three and one-third per cent (33 1/3%) of the amount recovered, and that said cross-defendants allege and aver that the amount so specified in said agreement, to-wit: A sum equal to thirty-three and one-third per cent (331/3%), was and is a reasonable amount to be paid by said Inez Watson to said L. E. Dadmun for his legal services so rendered and performed for and in behalf of said Inez Watson at her special instance and request in the prosecution of said action against
As its conclusions of law the court concluded: (1) that Dad-mun is entitled to recover from Inez Watson the reasonable value for services rendered; (2) that the contracts dated February 16,1935, and August 28,1936, are each void and contrary to public policy, being contingent upon divorce; (3) that both
On this appeal which is taken on the judgment roll alone, the findings are conclusively presumed to be supported by the evidence; the findings are to receive, if possible, such a construction as will uphold rather than defeat the judgment thereon; they are to be liberally construed and if possible any ambiguity or inconsistency will be resolved in favor of sustaining the judgment; and the judgment will be sustained unless some reversible error concerning a matter of law appears on the face of the record. Every presumption and intendment is to be resolved in favor of the regularity of the proceedings in the trial court and in the absence, as here, of the transcript of the evidence, it will be presumed that facts found not within the formal issues were supported by evidence introduced by the parties under stipulation or without objection. (Gin S. Chow v. City of Santa Barbara, 217 Cal. 673 [22 Pac. (2d) 5].) The joint answer to the cross-complaint of Inez Watson alleged that the amount specified in the agreement was and is a reasonable amount to be paid by Inez Watson to L. E. Dadmun for his legal services so rendered and performed for and in behalf of Inez Watson at her special instance and request. This allegation would sup
As far as Dadmun’s quantum meruit is concerned, it matters not whether the contract is valid or void. Elsewhere in the joint answer it is alleged that Inez Watson is indebted to Woods, and the prayer of the joint answer asks that Woods be given a judgment against Inez Watson. Upon this appeal we may assume that the evidence cleared up this inconsistency and that it showed Dadmun and not Woods to be the one entitled to recover a judgment from Inez Watson. (Cullen v. Foster, 39 Cal. App. 625 [179 Pac. 695].)
In short, we have a case where a party claims the judgment should go to his co-party and the court finds the party himself to be the one entitled to the judgment. In such a case the court may allow an amendment to conform to proof and it may allow an amendment to the prayer to justify the judgment provided, of course, as we have here, the party has stated a cause of action, the amendment does not change the cause of action, and the judgment is supported by the evidence. (Zellner v. Wassman, 184 Cal. 80 [193 Pac. 84]; Walsh v. McKeen, 75 Cal. 519 [17 Pac. 673]; Burd v. Downing, 60 Cal. App. 493 [213 Pac. 287].)
The judgment is affirmed.
A petition for a rehearing was denied August 28, 1941, and appellant’s petition for a hearing by the Supreme Court was denied October 2, 1941.