Boyles v. Leonardo

STURTEVANT, J.

The action was brought to recover a judgment for attorney fees which the plaintiff alleged were performed by his assignors for the plaintiff in a certain

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divorce ease commenced by the defendant. The trial court awarded the plaintiff a decree and the defendant has appealed therefrom.

Prior to May 23, 1921, Joseph J. Leonardo and Mary Leonardo had been husband and wife. Either as his separate property in part, or as community property at least in part, they were at that time possessed of a number of pieces of property of considerable value. Some of those properties were in Portugal and some were in California. Prior to the date last mentioned Mary Leonardo called on plaintiff’s assignors, complained to them that her husband was in the habit of brutally beating and whipping her, and consulted them as to her rights. Mr. Donahue at first took charge of the matter and commenced a series of conversations in which he attempted to settle the troubles existing between the Leonardos. Failing in that effort, a further conference took place between him and Mrs. Leonardo. At that time it was determined to commence the divorce case. Mr. Donahue testified that at that time he stated the fee would be $5,000, and Mrs. Leonardo said “all right.” Thereupon, May 23, 1921, the action in divorce was filed. Later an application for temporary maintenance and for costs and an attorney fee was made. The application was brought to a hearing and on June 3, 1921, an order was made awarding the plaintiff $250 per month pending suit, $250 costs, and $500 on account of her attorney fees. While the court proceedings stood at that stage, the attorneys for the respective parties conducted such negotiations as led to a tentative property settlement. On July 11, 1921, the husband paid $500 to his wife for attorney fees, and on the same day a conversation was had between plaintiff’s assignors and their client which resulted in a writing dated July 11, 1921, which is as follows:

“When a settlement is made between J. J. Leonardo and myself entered into this day and when said ten thousand dollars is paid and said note for $35,000.00 is executed I agree to pay to Donahue and Hynes the sum of $4500.00 less $500.00 already paid by said J. J. Leonardo, for attorneys fees and costs.