Fleschler v. Strauss

California Court of Appeal Aug 4, 1936 No. Civ. 9838Published

Before: Knight

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Holding. The court held that an attorney's testimony is competent to establish the fact and scope of their agency, and that communications between a client and attorney regarding instructions to settle a claim are not privileged. Furthermore, an oral account stated constitutes a valid new contract subject to a four-year statute of limitations.

Issues

Whether an agent's testimony is competent to prove the fact and scope of their agency.
Whether an attorney's testimony regarding settlement instructions from a client constitutes a privileged communication.
Whether an oral agreement regarding a balance due constitutes a valid account stated.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The rule is well established that the fact of agency when it rests in parol may be established on the trial by the testimony of the agent himself.”

“it is well settled in this state that communications of that kind are not privileged and consequently may not be excluded.”

“the balance when struck may be acquiesced in orally, and if agreed upon constitutes a new contract carrying an implied promise to pay.”

KNIGHT, J.

The trial court found from the evidence in this case that the defendant Joseph B. Strauss was indebted to plaintiff in the sum of $5,000 on an assigned account stated. Judgment was entered accordingly, and defendant appeals. In our opinion the appeal is utterly without merit.

Plaintiff’s case was established at the trial by the uncontradicted testimony of two witnesses. One was plaintiff’s assignor, attorney Charles H. Brennan, and the other, attorney Joseph Mclnerney, who acted in behalf of defendant in carrying on the negotiations with Brennan which resulted in the agreement constituting the account stated. No evidence was offered by the defendant. The following are the facts as established by the testimony of said witnesses: Prior

[737]

to October, 1929, Brennan asserted a claim against Strauss for $25,000 for money expended and legal services rendered in behalf of Strauss from April, 1925, until the early part of 1928, in connection with promoting the construction of the Golden Gate bridge. During the month of October, 1929, Mclnerney, at the request of Strauss, opened negotiations with Brennan for an adjustment of the claim and the negotiations continued on into the month of January, 1930, at which time a settlement was reached whereby it was agreed that Strauss would pay Brennan $10,000 at once or within a very short time. Thereafter, on January 15, 1930, in confirmation of said agreement and at the direction of Strauss, Mclnerney paid to Brennan the sum of $5,000 and stated that the balance would be paid some time before May 30th of that year, which was satisfactory to Brennan. However, no part of the balance was paid, and on August 2, 1933, Brennan wrote Strauss concerning the matter. Strauss replied on August 11, 1933, repudiating the settlement, and asserting that Mclnerney was not his attorney and had not been authorized to act for him in the matter of said settlement ; whereupon and on December 20, 1933, this action was instituted to collect the balance due.

Defendant contends that Mclnerney’s testimony was incompetent to prove that he was employed by or authorized to represent Strauss in the settlement of the Brennan claim; and in any event that his testimony failed to establish such employment and authorization. The answer to the first point may be found in the ease of

Fleschler v. Strauss

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KNIGHT, J.

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