Sumner v. Mohn

SHAW, J.

In this action plaintiff sued for the reasonable- value of legal services alleged to have been performed for defendant at his special instance and request.

The ease was tried by a jury, which gaye a verdict in favor of plaintiff for eleven hundred dollars. Judgment followed accordingly, from which defendant appeals, presenting in lieu of a bill of exceptions a typewritten record as provided in section 953a of the Code of Civil Procedure; and in their briefs the parties have printed portions of the record upon which they rely in support of their respective contentions. Though nothing appears in the complaint or bill of particulars rendered by plaintiffs on demand of defendant to indicate such fact, it nevertheless

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appears from the evidence received that plaintiff’s claim for compensation is based upon services not in fact rendered to or performed for defendant, but for the latter’s wife, who, as claimed by plaintiff, was agent of the husband, and being thereunto, at the expense of defendant, expressly authorized so to do, employed plaintiff as her attorney, from whom she sought advice as to marital differences existing between herself and husband, as a result of which, after some eighty or ninety separate consultations, covering a period of three or four months, plaintiff for the wife brought an action against defendant for separate maintenance.

The existing agency and the fact that the wife of defendant was by him expressly authorized to' employ, plaintiff as an attorney, and thus obligate him to pay for the services rendered his wife, depends solely and alone upon the latter’s testimony, who, notwithstanding the provisions of section 1881 of the Code of Civil Procedure, was permitted to testify against her husband without objection interposed by defendant, who now for the first time claims that it was error.

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Without considering the point, we may say that her testimony is insufficient to justify the finding implied by the verdict that she was authorized to act for defendant in employing plaintiff as her attorney at the expense of her husband in matters adverse to him and for the purpose of instituting an action against him. Her testimony, after stating at great length the existing marital differences and causes thereof, is that on the evening of October 11, 1917, “Doctor Mohn [the defendant] said to me, ‘Well, we had better settle up and separate’; he said, ‘You go ahead and get your counsel and I will get mine. ’ ” And again, “on the afternoon of October 15th, Doctor Mohn told me to go ahead and get an attorney, and we would settle this thing up.” This testimony and this alone,