Henshall v. Coburn

MELVIN, J.

Defendants Loren Coburn and Sarah Satira Coburn, his wife, appeal from a judgment against them, from a modified judgment, and from an order denying their motion for a new trial.

Plaintiff, an attorney and counselor at law, sued for $19,-450, alleged to be due for the value of professional services performed by him for defendants jointly. After issue joined the case was tried before a jury and a verdict for $10,450 was returned. Defendants moved for a new trial and the court made a conditional order that if within twenty days plaintiff should consent to remit all over five thousand dollars, the motion would be denied. Within the indicated period plaintiff filed his consent to the suggested modification of the judgment, after which the court made and entered a modified judgment in plaintiff’s favor for five thousand dollars and costs.

The services of Mr. Henshall were performed in an effort to secure a writ of error to the supreme court of the United States in the proceeding by which Mr. Coburn had been declared an incompetent person

(In the Matter of Coburn,

165

[52]

Cal. 202, [131 Pac. 352]), and he also appeared in the trials of two proceedings for the restoration of Loren Coburn tO' capacity, in the second of which the petitioner was successful. There is no contention that the award for the value of services is exorbitant, but appellants insist that the evidence fails to show an employment of plaintiff by them. Their contention is that the evidence, properly considered, proves that Mr. Archibald J. Treat, senior counsel for Mr. Coburn, employed Mr. Henshall to assist him, with the understanding that plaintiff was to be compensated not by the Coburns, or either of them, but by Mr. Treat himself. Appellants insist that there is no real conflict of testimony and that there is an entire absence of evidence to support any verdict against them, or either of them.

Without reviewing the testimony at length it is sufficient to say that the record furnishes abundant support for the verdict. Mr. Treat testified that both Mr. and Mrs. Coburn authorized him to employ Mr. Henshall. The plaintiff testified that he was employed by both defendants, and his statement was corroborated by those of Mr. Treat and Mr. J. Early Craig. Mrs. Coburn stated under oath that she had, she thought, first heard of Mr. Henshall in connection with her husband’s business after his return from Washington, where he had gone to ask for a writ to the supreme court of the United States, but a letter written by her to Mr. Treat before Mr. Henshall’s departure contained this sentence: “You are to have Mr. Henshall as you told us, and we thought he would be away by this time, as it was arranged to that effect.” The letter admittedly was signed by Mrs. Coburn and was entirely in her own handwriting. Plaintiff also introduced in evidence a notice signed by Mrs. Coburn and directed to Mr. Hynes, who was at the time guardian of Mr. Coburn’s person and estate. In it she referred to Messrs. A. J. Treat, Gavin MeNab, and R P. Henshall “as her attorneys,” and the notice specified that they were thereby “authorized and empowered to appear for her in all matters and things referred to in said notice.” At the hearings of the proceedings for restoration Mr. Henshall was in constant attendance and , was in frequent consultation with Mr. and Mrs. Cobum. It is suggested that Mrs. Coburn had no personal interest in the litigation and therefore could not be charged with responsibility for the payment of Mr. Henshall’s fee, but as a matter