Davis v. Edmonds

THE COURT.

Appeal from a judgment in the plaintiff’s favor in an action on a book account for services rendered as an attorney.

The original complaint was filed on May 21, 1926. It was based on a rejected claim of $10,000 filed in the matter of the estate of John W. Mitchell, deceased, for the reasonable value of legal services rendered by the plaintiff to the decedent in the latter’s lifetime during the period from October, 1921, to February, 1922. Subsequently the plaintiff, by leave of court, filed an amendment to his complaint setting up two additional causes of action, one for the same sum based on a book account for services performed; and the other involving the same claim based on a balance due upon a mutual, open and current account. Judgment in the sum of $10,000 was sought against the defendant. In addition to general and specific denials the defendant invoked the statute of limitations as to all three counts.

The issues were twice tried. On the first trial the plaintiff conceded the outlawed character of the claim based upon

quantum meruit,

and he abandoned the third count when it became apparent that there was no evidence of a mutual, open and current account. It was conceded upon

[357]

that, trial that, if the plaintiff could recover at all it must he on the cause of action based on the book account; and the bar of the statute of limitations has not since been urged as to this count.

On both trials there was offered and received in evidence, over certain objections of the defendant, the journal and ledger sheets of the plaintiff as constituting the book account.. The items of charges for legal services rendered to the decedent consisted of an entry of a charge of $1,000 as a retainer, a credit of $250, and an additional entry of a charge of $1500 for legal services.

Objection on the first trial was made to the plaintiff’s testifying on his own behalf concerning transactions had with the decedent., on the ground that the plaintiff was not a competent witness pursuant to the provisions of section 1880 of the Code of Civil Procedure. The objection was sustained on that ground and on the further ground that the bar of that section had not been removed during the cross-examination conducted by the attorneys for the defendant. The absence of testimony of the plaintiff concerning transactions covered by the items in the book account was made the basis of the judgment for the defendant on the first trial. On appeal the judgment was reversed.