Prince v. Kennedy

GRAY, P. J.

This is an action to recover $750 for services rendered by plaintiff’s assignors as attorneys at law. The finding and judgment were in plaintiff’s favor for the sum of $550 and costs. The appeal now before us is by the defendant from an order denying him a new trial. An appeal from the judgment in the same case has already been disposed of, and reference is had to that decision for a statement of the issues necessary to an understanding of this decision. (See

Prince

v.

Kennedy

(Civ. No. 152, decided by this court April 7, 1906), ante, p. 404, [85 Pac. 859.].)

1. It is urged by appellant that plaintiff ought not to have recovered because his assignors advised defendant to enter into an illegal transaction by which the defendant deceived his principal, whose land he was selling, with the view of making a secret profit on such sale, and that thereafter and before the secret profits had been realized they revealed the facts as to the secret profits to defendant’s principal, who instituted suit against defendant and forced a division of the secret profits between defendant and his said principal. The trouble with this contention is of a twofold character: First, it is not directed at any specific finding of the court as to the facts in the case, and, second, the whole matter relates to something entirely outside the issues made by the pleadings and having no relation whatever thereto. It was the duty of the defendant, if he had any defense of this character, to have at least shadowed it forth in his pleadings. And of course, it is of no

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efficacy to argue in a court of review that the evidence is defective upon a matter not in issue and as to which no findings were either required or made.

Moreover, if it he conceded that the sufficiency of the evidence as to this question can he now raised, still the evidence is in conflict concerning the matter. Taylor’s testimony shows that there was no bad faith or deception practiced by his client, the defendant or himself as attorney, in relation to the secret profits. Daneri was the owner of the property that defendant sold and Mr. Winder was Daneri’s attorney; and as to the transaction Taylor testifies: “That after lunch of the same day, Judge Winder and Mr. Daneri came to witness’ office and with paper and pencil in hand, Judge Winder said, ‘What is your proposition?' That witness said ‘We will give you $19,750,’ and witness repeated the terms, just given, which Judge Winder took down and after rehearsing the same to Mr. Daneri, replied, ‘We accept the offer.’ That witness said to Mr. Daneri, ‘You understand, Mr. Daneri, that you are to get $19,750 for your place, pay the first half of the taxes, and all over and above that Mr. Kennedy is to get for his commission and the expenses of making the sale?’ That Mr. Daneri nodded his head and said, ‘I understand.’ That witness further said, ‘And you understand that you do not care, and it is none of your business how much Mr. Kennedy gets from the purchaser, over and above $19,750?’ That Mr. Daneri said, ‘I understand that.’ And Judge Winder said, ‘We understand that thoroughly. ’ ” If it be conceded, then, that the decision and judgment of the court against defendant is equivalent to or implies a finding against the defendant as to this matter, it can still be said that there was substantial evidence to support such a finding, and therefore it is not to be interfered with.