Bayly v. Lee

SLOSS, J.

This action was brought to recover damages for breach of contract. The court granted defendant’s motion for a nonsuit, and entered judgment accordingly. Plaintiff appeals from the judgment and from an order denying his motion for a new trial.

The complaint alleges that the defendant is an attorney at law, and that on December 2, 1909, the parties entered into a written agreement, whereby the plaintiff employed and retained the defendant as his attorney to enforce plaintiff’s rights under a certain contract between said plaintiff and one

[138]

Dolbear, dated November 1, 1905. It is alleged that the plaintiff paid the defendant five hundred dollars as partial compensation for the services thus to be performed; that the defendant wholly failed and neglected to do the things agreed to be done by him; that under the agreement between plaintiff and Dolbear plaintiff was to receive stock of the value of fifty thousand dollars, and that Dolbear has become unable to transfer said stock or to pay the value thereof to the plaintiff. Judgment is asked for fifty thousand five hundred dollars.

The answer denies, among other things, that the defendant failed to perform his obligations under his agreement with plaintiff. It is true that the denial is expressed in an imperfect way. We cannot, however, agree with the appellant’s contention that there is a total failure to raise an issue with respect to the performance by the defendant of his agreement. Furthermore, the record shows that the plaintiff tried the case upon the theory that defendant’s failure to perform was in issue. Under these circumstances, this court will not entertain the suggestion, made for the first time on appeal, that the attempted denial was ineffectual for any purpose.

(Green

v.

Lake Superior & P. Fuse

Co., 46 Cal. 408;

Spiers

v.

Duane,

54 Cal. 176;