Wagner v. Sariotti

PETERS, P. J.

Defendants prosecute this appeal from a judgment for plaintiff rendered in an action to enforce an equitable lien and constructive trust upon certain real property owned by defendants. The appeal is taken on a bill of exceptions. The only exceptions noted are to the orders overruling the defendants’ general demurrer to the first amended complaint, and denying defendants’ motion for judgment on

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the pleadings. The sole issue presented, therefore, is whether the first amended complaint states a cause of action.

From the first amended complaint it appears that defendants had taken a transfer of property from Francesco Caliechio, and, in return, had promised to support him. Defendants broke this contract. Calicchio employed plaintiff, an attorney at law, to represent him in any action he might have against defendant Mary Sariotti. As evidence of this employment on August 19, 1938, the following letter was signed by Calicchio and delivered to plaintiff:

“Dear Sir:

“I hereby retain you as my attorney with reference to any actions or proceedings which you may take against Mary Sariotti, either to recover money or property which I previously deeded to said Mary Sariotti.

“For your services I agree to pay a sum equivalent to one-third of any recovery that you may obtain for me. In the event that you do not recover any money or property for me, then I will owe you nothing for your services.

“This letter has been read to me and I understand its contents and agree to the same. ’ ’

On the next day Calicchio executed the following assignment:

“For value received I hereby set over, assign and transfer unto Richard Wagner a one-third (%) interest in any and all moneys and/or property which he may recover for me from Mary Sariotti.”

It is alleged that at all times concerned Calicchio was without funds and had no money with which to commence and pursue any litigation, and that this fact was known to defendants; that on April 1, 1939, plaintiff, as attorney for Calicchio, instituted suit against defendants; that in that action damages were sought for breach of defendants’ contract to support Calicchio for the two-year period immediately preceding April 1, 1939; that on August 1, 1939, judgment was rendered against defendants and in favor of Calicchio for $960 and costs; that on September 30, 1939, plaintiff filed an identical suit to recover for the breach of contract to support from March 31, 1939, to September 30, 1939; that the complaint in the second action prayed for judgment against appellants for $350 and costs; that a writ of execution was issued on October 13, 1939; that on that day the sheriff was instructed to levy upon all of the interest of the defendants in certain described real property; that this prop