Cohen v. Berman

ARCHBALD, J.,

pro tem.

Plaintiff, an attorney at law, sued defendants for the reasonable value of legal services alleged to have been rendered them. The defendants answered denying that they were indebted to plaintiff in the amount claimed or in any other sum, and defendant Jacob Berman, also known as Jack Bennett, filed an amended answer which, in addition to said denial, set up the further defense of the statute of frauds. Plaintiff recovered judgment and defendants appeal.

On the part of appellant Louis Berman it is contended that the contract for respondent’s employment was made with a firm of attorneys in New York and that it covered the entire service rendered by respondent; that such contract was never terminated and that respondent had no right to charge Louis Berman as the party primarily liable thereon, and that the latter’s assent to the continued employment of respondent did not constitute a novation. Appellant Jacob Berman contends that he did not make or join in the original contract of employing respondent, and that any subsequent promise made by him is within the statute of frauds and void. The court found that respond

[133]

ent was employed by Louis Berman and that the promise of Jacob Berman “was an original promise and constituted a direct obligation and promise of the said defendant to the plaintiff in conjunction with the promise of defendant Louis Berman to pay for the services rendered and to be rendered for the defendant Louis Berman by said plaintiff”.

The first intimation which plaintiff received of possible employment was a wire dated May 17, 1927, signed by Mark Eisner of the New York law firm of Olvany, Eisner and Donnelly, which adyised plaintiff that he would “be visited by Louis Berman brother of Jack Bennett”, and contained the following instructions: “Take care of him I represent Jack Bennett Please advise regarding developments.” Shortly thereafter Louis Berman called on plaintiff, but before that plaintiff had not met either defendant.

In a conversation with Mr. Donnelly of the New York firm, according to plaintiff’s testimony, the latter said to Donnelly, in regard to fees, that $10,000 should be paid as a retaining fee for all services up to the time of trial; that the $10,000 should be divided up in this way: That $5,000 should be fixed immediately as a retaining fee and $5,000 held for expenses as they were incurred, the balance, if any, to be applied on general fees; “and that if the case goes to trial, that an arrangement should be made for further compensation. He said he felt that was reasonable”. Thereafter plaintiff received a letter from the New York firm, written by Donnelly, in which he states: “Today, when I conferred with Mrs. Berman, she delivered to me a check to your order for $10,000, of which you are to take $5,000 as fees, and $5,000 to apply as disbursements in the matter concerning which you and I spoke while we were there. So much as is not used by you for disbursements may be applied toward your general fees.” At that time Louis Berman was evidently in Los Angeles and Jacob Berman in New York; and it is apparent from the letter that the first employment included not only the representation of Louis Berman but services to be performed for Jacob Berman as well. It also appears from the evidence that the check for $10,000 received by plaintiff was the “check of Mildred Berman, Mr. Jacob Berman’s wife”.