Roche v. Baldwin

The action is brought upon claims assigned to the plaintiff by H.E. Highton, an attorney at law, and is based upon professional services alleged to have been rendered the defendant by said assignor, Highton, in several different cases or matters. The largest amount claimed is in the case of Ashley v. Baldwin, for which the sum of ten thousand dollars is claimed. The case was tried by a jury, and a verdict rendered in favor of the plaintiff in the aggregate of $8,755.60. Defendant's motion for a new trial was denied, the plaintiff having consented in writing to remit from the verdict rendered the sum of $2,642.60. The appeal is taken from the judgment and from the order denying a new trial.

On the appeal the case of Ashley v. Baldwin only will be considered, and it is not necessary to refer further to the other smaller claims. The appellant urges two points on the appeal: —

1. The employment in Ashley v. Baldwin was upon the condition that the amount to be paid for the services should be fixed by the defendant Baldwin, and his agent, Mr. Unruh, and that such amount never was fixed, and the defendant never refused to fix it, and that the present action, brought upon a quantum meruit, as to that claim cannot be maintained. There cannot be much question that the employment in that case was conditioned. Unruh testified as follows on that point: "I was present at a conversation between Mr. Baldwin and Mr. Highton relative to the employment of Mr. Highton in the Ashley case. My impression is that the interview was suggested by Mr. Highton, Mr. Highton saying that he had had some talk with Mr. Baldwin in relation to the case; and we were to meet in the office to talk over the matter. We met in the office of the Baldwin Hotel, near the door going into the private office, and there Mr. Highton suggested his being employed in the Ashley case, and went on to state that he could be of great service; that he was under such obligations to Mr. Baldwin as would prompt him to render such services faithfully, and do everything that he could for Mr. Baldwin. He expressed himself as being deeply grateful to Mr. Baldwin for the way that Mr. Baldwin had treated him in years past. He referred to his leniency — the leniency with which Mr. Baldwin had treated him with regard to the board bill; the summing up was, in substance, that he would go into the case and do *Page 524 everything that he could, and I think that either Mr. Baldwin or myself, I don't remember which, suggested that some fee should be specified. Mr. Highton expressly and plainly stated that he would leave that entirely with Mr. Baldwin and myself to fix, without any reservation; and he repeated it half a dozen times, that we should fix the fee; that he would leave it entirely to us; that we had always treated him fairly; and after the interview I made a memorandum of that statement. The making of this memorandum fixes it plainly in my mind. But I find the book in which it is copied, the leaf on which the memorandum was made is torn out; how it came I cannot say. I was distinctly told that he would leave the fixing of the fee to us." Defendant, Baldwin, testified as follows: "The employment of Mr. Highton in the Ashley case occurred in this way: Mr. Highton had asked me a number of times to employ him. He said I had plenty of business, and ought to employ him to give him a chance to pay some of his debt to me. Mr. Lloyd wanted me to employ General Barnes. I was pushed for money, and did not want to pay out money when a man was owing me. I had an arrangement to meet Mr. Highton and Mr. Unruh. I asked Mr. Highton what fee he would charge me. I told him I would like to know the fee before I hired him. After talking around about a number of things, he spoke of how long he had been in the hotel, and how much his wife thought of the house, and the way they had been treated; he went on to say, `I shall leave this entirely to you and Mr. Unruh. I do not make a fee at all; I will leave that to you two; whatever you two say is right, I will be satisfied and willing to take.' Under those circumstances I employed him and told him to go on." Highton, the assignor, testified as follows: "I have a very distinct recollection of the fact that Mr. Baldwin, Mr. Unruh, and myself were together on the outside of the office of the Baldwin Hotel at the time of my engagement in that case; and that when they had stated to me that they wished me to take some part in that case, — in fact, I think it was brought about to some extent by my own suggestion, — Mr. Unruh, according to my recollection, said to me in the presence of Mr. Baldwin, — standing by Baldwin, — `Judge, what about the fee; about compensation?' or something to that effect. I said, `You and I can fix that without any trouble at all, at any time'; that is about just what I said. I cannot repeat the exact language." And the instruction hereafter *Page 525 noted practically assumes that the employment of Highton in the Ashley case was conditioned as to payment. Otherwise, said instruction is meaningless, as not being applicable to any facts proven. The contract of employment in this case, therefore, being conditioned upon the fixing of compensation in the manner stated, the action as to that part of the case cannot be supported upon a complaint as upon a quantum meruit. The complaint as to this matter should have counted upon the agreement, as alleged in defendant's answer and as proven at the trial, together with an allegation that said agreement had been repudiated by defendant, or that he had refused to act under it in fixing the compensation. As the complaint now stands, the probata andallegata do not at all correspond. (O'Connor v. Dingley, 26 Cal. 21; Victor Sewing Machine Co. v. Scheffler, 61 Cal. 530; Daley v.Russ, 86 Cal. 114; Lavenson v. Wise, 131 Cal. 369.) In the latter case, as in this, the agreement or contract was special, and contained a condition, and the court say: "Under the facts in the case, as they now appear, we are unable to discover any ground upon which the present action on quantum meruit can rest as to the matter of the suit against Murphy and Smalley."