139 Cal. App. 552 | Cal. Ct. App. | 1934
This action was originally brought by Alice H. Wright, plaintiff and respondent, as assignee of Harrison G. Sloane and Robert B. Burch, to recover from appellant G. L. Strobeck, and V. A. Adams and W. E. McDonald, as defendants, the amount of certain attorneys’ fees alleged to be due from them to said Sloane and Burch. The complaint, as initially filed, set out two causes of action, the first, against all three defendants upon a quantum meruit, and the second, against Strobeck alone upon an account stated, both counting on an alleged employment of respondent’s assignors by appellant Strobeck and said Adams and McDonald, on or about March 25, 1931, to prosecute in the United States District Court for the Southern District of California a proceeding in bankruptcy against one Claus Spreekels to enforce and collect certain claims against him, in consequence of which certain settlements were alleged to have been obtained. In the second cause of action it was claimed that on or about September 23, 1931, an account was stated between Strobeck and respondent’s assignors whereby it was agreed that “taking into account payments theretofore made by said defendants (Strobeck et al.) there
Some question has been raised about the sufficiency of the showing in the trial court that Sloane and Burch had, in fact, assigned the account to respondent, but any doubt on that score has been resolved by evidence which was permitted to be taken at the time of the oral argument, so that it will be considered that the assignment has been shown, and this leaves, as the only matter to be determined, whether there is evidence in the record from which the
It appears that in April, 1931, Philip Storer Thacher, who had been and is the general attorney for appellant Strobeck, arranged with Plarrison G-. Sloane, also an attorney, to represent Strobeck, who held a judgment against Spreckels, as well as to represent Adams and McDonald, two other creditors of Spreckels, in procuring an adjudication of bankruptcy against him. Whether the employment went any further and contemplated that Sloane should represent the creditors’ claims after such adjudication had been obtained is disputed. At any rate Sloane assisted by Robert B. Burch, also an attorney, whom he called into the matter with Thacher’s knowledge, instituted the bankruptcy proceedings and the adjudication of bankruptcy eventually followed. In the meantime and on May 19, 1931, Sloane wrote Thacher that the bankruptcy petition had been set down to be heard on July 27th; that a vigorous contest was to be anticipated; that he and Burch had tackled the matter on short notice without stopping to make an arrangement about fees, but that there should be a retainer provided, going on to say: “You do not appear as an attorney of record and I do not know just what your relationship is with the different parties as to fees. One way or another, of course, you must be taken into consideration. I believe that we should call on the petitioners for a levy at this time which will raise sufficient funds to pay Burch and myself at least '$500.00 as a retaining fee. What will be the best way to go about it ? Do you' want to negotiate it or shall we take it up direct with our clients?” Thacher, according to Sloane, answered that “he had other arrangements with Mr. Strobeck, did not participate in ours, we were to deal directly with the petitioners”. Accordingly, Sloane on May 25, 1931, wrote an identical letter to each of the three petitioners containing, among other things, the language: “We have suggested to Mr. Strobeck the propriety of receiving a $500.00 retaining fee, which will also compensate us for our services up to the present time, and he has responded by giving us his check today for one third, $167.00.” According to Sloane, Adams and McDonald on receiving this letter came in and asserted that Thacher
Sloane says that copies of this letter were sent to Strobeck and the other two petitioners. There is in the evidence a further letter from Sloane to Thacher under' date of July 14, 1931, discussing the progress of the case. Subsequently
On September 23, 1931, Sloane wrote Strobeek in part as follows: “ ... It seems to be in order ... to submit our bill, which we enclose herewith. We believe, in view of the nature of the case and the time and skill which we expended in the matter, coupled with a prompt settlement of your claims on a basis satisfactory to you, that a charge of 10% on the actual cash received by you is reasonable and we have made our bill on that basis. We will be able to recover some portion of this amount from the bankrupt’s estate, and will, of course, give you credit for your proportion of such sum and for the small balance of costs which remain unexpended on our hands.” Sloane went on in this letter to suggest that the recovery from the bankruptcy court would probably not exceed $1,000, “which-should be prorated on the charge to you”, that, “accordingly, if you will remit to us $1166.33 . . .'at this time, we will let the rest of it ride until this figure has been fixed by the Referee in Bankruptcy”. With this letter was inclosed a bill in the words and figures following:
*558 “September 23, 1931.
“Mr. G. L. Strobeck “932 Seventh St.,
“San Diego, California
‘‘In re — Clans Spreekels, Bankrupt.
“Professional services in preparation of Bankruptcy Proceedings against Claus Spreekels, filing and prosecution of the same to adjudication and collection of $20,000.00 in settlement .$2,000.00
“Withheld for later payment. 666.66
$1,333.34
“Credit:
“Received on account. 167.00
“Balance payable.$1,166.34”
Sloane received a reply to this communication under date October 3, 1931, from Thacher, the body of which is as follows:
“Mr. Strobeck has asked me to reply to your recent letter to him, and as soon as I can get time from the melee caused by the absence of my secretary, I will reply to your letter to him, as well as to your letter to me of September 1st.”
On October 29, 1931, Sloane wrote Thacher that he had heard nothing either from him or from Strobeck relative to the attorneys’ fee; that the Los Angeles creditors had finally agreed to take one-third of whatever attorneys’ fee allowances were made, leaving two-thirds to the San Diego claimants, that the writer understood that Strobeck had secured his cash from the Spreekels people and that a proper portion of it would be devoted to taking care of his attorneys’ fees. No answer was made to this letter.
No further communication passed in either direction on the subject, if Sloane’s account is accepted, except that Thacher testified to having called three times at Sloane’s office to discuss the fees, but to have found him out, until April 14, 1932, when Sloane and Burch joined in a letter to Strobeck saying that on September, 23, 1931, they had stated to him their account in the matter wherein they had deferred payment to the extent of- '$666.66 on the assumption that the petitioners would receive a total of $1,000 to apply
“Robert B. Burch
“Harrison G. Sloane
“Attorneys at Law
“1230 J. D. Spreckels Bldg., “San Diego, California, “April 14th, 1932.
“Statement of Account of Mr. G. L. Strobeck “932 Seventh St., San Diego, California.
“In re — Claus Spreckels, Bankrupt.
“Account stated September 23, 1931, Balance payable.$1,166.34
‘ ‘ Credit
.“By further allowance. 404.00
$762.34”
Sloane testified that long after sending the bill of April 14, 1932, and, as best he could place the time, in September, 1932, “I met Mr. Strobeck on the corner of Sixth and Broadway, in front of the Bank of America, and he was going in one direction, and I was going in the other, and he held up his hand and stopped me. He came over in a cordial way and said: ‘That bill of yours, I have arranged with Mr. Thacher to take care of that,’ and I said, ‘That’s fine,’ and I went on down to the Court House.” He says that neither Strobeck nor Thacher made any objection to the bills submitted. Strobeck’s account of the conversation just referred to is that it occurred earlier, just
The actual allowance in the bankruptcy proceeding made for the attorneys’ fees of the petitioning' creditors was $1250, of which the share of the San Diego petitioners was $833.33, which was on September 7, 1932, collected by Sloane and Burch. Burch thereupon on September 16, 1932, wrote Thacher that though the allowance from the bankruptcy court had been less than anticipated in the original statement of September 23, 1931, yet he and Sloane would “absorb” the difference and accept from Thacher in full of the balance due from him the $1166.34 called for in this original statement. This resulted in further correspondence back and forth which we do not consider it necessary to recite. The final position taken by Sloane and Burch after the negotiations for settlement had failed and when the case came to trial was that of the $833.33 collected, !$555.32 should be credited to Strobeek. Sloane and Burch also recovered for Strobeek $50 expended on costs, the addition of which to the $555.32 makes $605.32. The court’s findings and judgment proceed, then, upon the theory that there was an account stated whereby the fees payable on Strobeek’s account to respondent’s assignors were fixed at $2,000, against which he was entitled to a credit for the $167 retainer, leaving a balance of $1833, on which the said $605.32 should be treated as a further credit, leaving $1227.68 still due and unpaid.
The evidence shows that Strobeek often consulted with Sloane and Burch while they were engaged in the proceedings to have Spreckels adjudicated a bankrupt. There is no doubt that he ratified Thacher’s act in employing Sloane and Sloane’s act in associating Burch with him. Tie is shown to have known that Sloane and Burch intended to look to him personally for their fees, less what they could get from the bankruptcy court, and actually to have paid $167 on account of. their fees. He was one of the
We think that the record amply justified the trial court in finding that, in view of all that had gone before, the statement of September 23, 1931, when coupled with what it believed to be Strobeck’s prolonged failure to object to it, resulted in an account stated. “An account stated is a document — a writing — -which exhibits the state of the account between parties and the balance owing from one to the other, and when assented to, either expressly or impliedly, it becomes a new contract.” (Merchants Nat. Bank v. Carmichael, 50 Cal. App. 749, 752, 753 [196 Pac. 76].) Consent to such a statement is ordinarily implied from failure to object to it within a reasonable time. (Auzerais v. Naglee, 74 Cal. 60 [15 Pac. 371]; Hendy v. March, 75 Cal. 566 [17 Pac. 702]; Mayberry v. Cook, 121 Cal. 588 [54 Pac. 95]; Atkinson v. Golden Gate Tile Co., 21 Cal. App. 168, 171 [131 Pac. 107]; Schneider v.
It is claimed, however, that even if there was an account stated, its effect would be to entitle respondent’s assignors to only $1166.34, as the balance claimed in this original bill, instead of $1227.68, for which respondent was
The second statement rendered April 14, 1932, as shown by the accompanying letter as well as certain negotiations shown in the record as having occurred in the fall of that year amounted, so far as respondent’s assignors were concerned, only to efforts to obtain a settlement, and whatever concessions were offered with that in view must in view of appellant’s failure to agree to a settlement be treated as now withdrawn.
We find no error in the record. The judgment is affirmed.