Setzer v. Robinson

DOOLING, J.

Plaintiff, an attorney at law, brought this action to enforce a contingent fee agreement with defendant for legal services rendered and for satisfaction of the lien thereby created against defendant’s property. Defendant cross-complained to quiet his title against plaintiff’s alleged lien. The trial court concluded that the agreement was void and gave judgment for defendant, quieting his title on his cross-complaint. Plaintiff appeals, claiming that the evidence was insufficient to support the findings and judgment.

Defendant and his stepmother owned in joint tenancy two adjoining lots in The Cascades, Fairfax, Marin County. One lot cost $600, and the other $400; and defendant built a small house costing about $1,000 on one of the lots. In March 1947 defendant agreed in writing with his stepbrother that if defendant survived his stepmother, he would deed the two lots to his stepbrother, reserving to himself a life estate, and the stepbrother would keep the house in repair and do certain other things. About a month later the parties signed a memorandum confirming their previous agreement. The stepmother died soon thereafter.

On April 17, 1950, at the suggestion of a fellow employee defendant went to plaintiff’s office to consult with plaintiff concerning his rights in the property in the face of the two agreements which he had entered into with his stepbrother. At that time defendant outlined the situation to plaintiff and left copies of the two agreements with plaintiff for the purpose, according to plaintiff’s testimony, of plaintiff giving his thought and consideration to them “and also to determine at his [defendant’s] request the basis upon which I [plaintiff] could undertake the matter.” On April 20, 1950, plaintiff sent a letter to defendant in which he informed defendant that he would represent him in the matter for a $500 retainer fee and a reasonable fee for his services. Defendant advised plaintiff that he was unable to arrange for a retainer of $500 but could procure a retainer of $250; and after further negotiations the parties agreed orally to an arrangement for a $250 retainer and a one-third contingent fee, with the $250 retainer to be included in calculating the one-third. Defend

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ant told plaintiff that he would have to procure the $250 and left with the understanding that plaintiff would in the meantime proceed as far as he could; and thereafter plaintiff did some preliminary work, including the procuring of a certified copy of the stepmother’s death certificate. On May 9, 1950, plaintiff sent another letter to defendant enclosing a certified copy of the death certificate and adding: “As soon as you have the retainer, come in with it and I shall execute the agreement I have prepared.” On May 19, 1950, defendant, who had redeemed certain savings bonds, called at plaintiff’s office with a U.S. Treasury check for $274.50 (the proceeds of the bonds) and delivered this check to plaintiff, and plaintiff gave defendant the difference between the $274.50 cheek and $250. On May 23, 1950, defendant called again at plaintiff’s office and the contingent fee agreement which had been prepared by plaintiff was signed.