Conroy v. Waters

HENSHAW, J.

Plaintiffs complaint charged in three counts. The first was a simple action upon a promissory note for $750, executed by defendant to plaintiff; the second was for the value of professional services rendered by plaintiff to defendant as his attorney at law, made up of several items, and aggregating the sum of $800; the third charged that defendant had been in the custody, management, and control of certain wool, sheep, and lambs, the joint property of plaintiff and defendant, and that he had sold some of this property, of a value unknown to plaintiff. An accounting was demanded, and a recovery for the value of plaintiff’s share. Defendant answered by denials, by special defenses, and by a cross-complaint. The issues presented by these pleadings will be more specifically adverted to as occasion may require. The court made voluminous findings, and gave judgment for plaintiff in the sum of $793.60, from which judgment defendant appeals. It is urged against the judgment that the findings are in themselves so conflicting and self-destructive in essential particulars that the judgment thereon cannot be supported. While the findings are undoubtedly open to criticism in this regard, yet we think that sufficient appears from them without conflict to sustain the judgment, if in other respects it is tenable.

Upon the first count the court found that by reason of the nature of the contract of employment between plaintiff and defendant in regard to certain litigation, nothing whatever was due upon the promissory note. However, it proceeded to find that the value of plaintiff’s services in the matter of this litigation was five hundred dollars, and upon a

quantum meruit

gave judgment accordingly. But plaintiff was entitled to recover only upon the issues made. His action was upon a promissory note. The finding as to the value of the services was entirely without the issues, and cannot stand.

Upon the second count,—that for eight hundred dollars, value of services rendered,—the court allowed judgment, for twenty dollars upon a single item. Plaintiff’s statement grouped three particulars, as follows: “1. To retainer and services in cause of Pacific Coast Steamship Company; 2. To

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retainer and services in the cause of