Bergan v. Badham

BISHOP, P. J.

The plaintiff, seeking to recover upon the assigned claim of partners who had served as defendant’s attorneys, appeals from the judgment that she take nothing. The trial court found that the value of the assignors’ services was greater than the sums that had been paid them, but nevertheless made no award against the defendant. We have

*Supp. 856

reached the conclusion that a judgment should have been entered in plaintiff’s favor.

The defendant employed plaintiff’s assignors to represent her in a divorce action brought by her against her husband. The arrangement respecting counsel fees was that the assignors would look to the husband, acting under court orders, for their compensation. The complaint, in the divorce action, was filed February 25, 1953. In March, an order was made for the payment by the defendant in the divorce action, to plaintiff’s assignors, of $350 as attorney fees, any balance to be fixed at time of trial. Subsequent proceedings provided for further payments until $700 was received. However, all the sums paid were $550 less than the amount of $1,250, found by the trial judge, with commendable, but not unexpected, fairness, to represent the reasonable value of the services rendered the defendant.

Under date of May 13, 1954, the defendant wrote plaintiff’s assignors that she requested that Mr. Sidney Cherniss be substituted in their place, stating that she had lost confidence in them. Without expressing any objection to the substitution, and with no assertion of a claim against the defendant for fees, plaintiff’s assignors joined in the execution of the familiar substitution-by-consent provided for in subdivision 1 of section 284, Code of Civil Procedure. Thereafter a property settlement was made in which the defendant in the divorce action was released from all liability for his wife’s attorney fees. A divorce decree was awarded the defendant in this action in June, 1954, and a motion of plaintiff’s assignors for further fees from the divorce defendant was denied.

Had the relationship of attorney and client, existing between plaintiff’s assignors and the defendant, continued without interruption to the end of their employment, they would have had no cause of action for attorney fees against her, because they had agreed to look to her husband.

(Sapiro

v.

Marquis

(1951), 102 Cal.App.2d 34 [226 P.2d 736].) They would have had a cause of action, not upon any express contract, but for the reasonable value of their services up to the termination of the contract, had she discharged them either without cause