Garrie v. McCauley

VALLÉE, J.

Appeal by defendant J. A. Thompson from a judgment in favor of plaintiff for legal services rendered under an oral agreement.

The trial court found that between December 11, 1953, and February 1, 1955, defendant J. A. Thompson and decedent Norma McCauley became indebted to plaintiff in the sum of $9,900 for legal services performed by plaintiff for and on their behalf and at their special instance and request; the services were reasonably worth $9,900; $1,600 has been paid on account of the services, leaving a balance due, owing, and unpaid of $8,300 by defendants and each of them, together with interest thereon at 7 per cent per annum from February I, 1955. Judgment followed against defendants J. A. Thompson and Frank E. McCauley as administrator of the estate of Norma T. McCauley, deceased, for $8,300 with interest. Separate appeals were taken from the judgment by defendants Frank E. McCauley as administrator and J. A. Thompson. The appeal of Frank E. McCauley has been dismissed. The appeal of J. A. Thompson, sometimes called defendant, is before us.

Defendant’s main contention is that the evidence does not support the trial court’s finding of an implied agreement on his part to pay plaintiff’s fees.

Attention is directed at the outset to

Caron

v.

Andrew,

133 Cal.App.2d 412, in which it is said (p. 416 [284 P.2d 544]) :

1 ‘ ‘ Contracts are often spoken of as express or implied. The distinction involves, however, no difference in legal effect, but lies merely in the mode of manifesting assent. (Rest., Law of Contracts, § 5.)

It is generally held that the existence of an implied contract is usually a question of fact for the trial court. Where evidence is conflicting, or where reasonable conflicting inferences may be drawn from evidence which is not in conflict, a question of fact is presented for decision of the trial court. ’ ”

This is a typical conflicting evidence case. Defendant J. A. Thompson was Norma McCauley’s father. Frank and Norma McCauley were husband and wife. Frank had an interest in various business enterprises conducted by his father-in-law, Thompson. Norma sued Frank for a divorce. At defendant’s request plaintiff was substituted as attorney for

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