Cohn v. Thompson

This is an appeal on the judgment-roll alone. The complaint was in two counts, an open book account and account stated, and alleged that prior to the commencement of the action Bullock and Jones, for a valuable consideration, assigned to plaintiff all their right, title and interest to said claim, and that plaintiff is now the owner and holder thereof. Judgment was awarded to the plaintiff against defendant Howard Glover Thompson, who presents this appeal.

Findings were made that the following allegations in the amendment to the answer were true: "II. That the said David W. Cohn is not an attorney-at-law, and is not admitted to practice law in the state of California. IV. That the said claim described in the said complaint against the defendants was assigned by Bullock and Jones, a corporation, to plaintiff herein, and that under and by virtue of the contract of assignment of said account by Bullock and Jones, a corporation, to the plaintiff, David W. Cohn, it was contracted and agreed by and between the said plaintiff and the said Bullock and Jones, in consideration of said assignment, that the plaintiff would endeavor to collect the account described in the complaint from the defendant at plaintiff's expense, if possible, and if successful would receive a certain percentage of the amount collected, contingent upon collection thereof, but in the event that the said account could not be collected from the defendant without suit, then in that event plaintiff would sue in his (plaintiff's) own name, and hire an attorney at his own expense to bring said suit and prosecute same to judgment, and if successful, and a collection was made, plaintiff was to deduct the costs and a certain percentage of the account collected from the amount collected for his services, and then remit the balance due to plaintiff's assignors, Bullock and Jones. That by the terms of said contract the plaintiff was to retain and pay said attorney at his own expense for said services and to pay all costs likewise. V. That pursuant to said contract the plaintiff did hire and retain as his attorney one George M. Wicke, attorney of record for the plaintiff herein, and did have said attorney institute the above-entitled action in plaintiff's name, and did appear in court by his attorney of record, George M. Wicke, and *Page 786 attempt to attain [obtain] a judgment in the above-entitled action against the said defendant above named; that said attorney, George M. Wicke, is the attorney for the plaintiff, David W. Cohn, and that the relation of attorney and client does not exist between plaintiff's assignors, Bullock and Jones, a corporation, and the said George M. Wicke."

Appellant urges that the contract is illegal and void because it was made for the purpose of collection only, and to thus enable plaintiff to make a profit from the practice of law; that the contract provided that the plaintiff would pay all expenses and would collect the said account and receive, as compensation therefor, a certain percentage of the amount collected, and if a suit was filed by the plaintiff, that he should receive a certain percentage of the amount collected, and that the plaintiff's counsel, George M. Wicke, the attorney for the said plaintiff, would be paid entirely by the said plaintiff. That the relation of attorney and client did not exist between Bullock and Jones, the plaintiff's assignor, and the said George M. Wicke, attorney for the plaintiff. The defendant further maintains that the plaintiff is not the real party in interest and has no interest in the claim more than any attorney who sues on a claim for collection on a contingency basis, the whole purpose and intent of the assignment being to enable the plaintiff to sell the legal services of his attorney, and make a profit thereon. The defendant contends that said contract is void as against public policy, that by this means plaintiff is not under the jurisdiction of The State Bar of California, and is not under The State Bar's rules of conduct and thereby restrained from soliciting lawsuits, and if allowed to hire an attorney and maintain this action in his own name, his attorney will be thus soliciting indirectly.