Ellis v. Woodburn

De Haven, J. — This is an action by the plaintiff, who is an attorney at law, to recover from defendant the sum of one thousand dollars, alleged to be due on account of professional services rendered by plaintiff to defendant.

The plaintiff recovered judgment for the sum demanded, and the defendant appeals from such judgment and an order refusing him a new trial.

The complaint is in two counts, the first of which states, in substance, that defendant retained plaintiff as his attorney, and that as such attorney, and upon his said retainer, he rendered services in defending a case in the superior court of El Dorado County, in which the Lake Valley Railroad Company was plaintiff, and this defendant and the El Dorado AVood and Elume Company were defendants, “ and in counseling and advising therein, and conducting negotiations to a settlement thereof,” and that said services so rendered were reasonably worth the sum of fifteen hundred dollars, of which five hundred dollars have been paid.

The second count alleges that plaintiff was employed by defendant as his attorney in the action referred to in the first count, “to defend him against said action, and, if possible, to prevent a condemnation of his land as aforesaid, and to negotiate a sale of his said land, or the timber growing thereon, to said company, and in case said Lake Valley Railroad Company should procure such judgment of condemnation, and construct such railroad, then in case said railroad company should fail or neglect to operate and carry on such railroad in accordance with the laws of the state of California, to commence proceedings to procure a forfeiture of its right to operate and carry on such railroad,” — for the agreed price of five hundred dollars, and “ the further sum of one thousand [131]dollars if he should succeed in procuring such judgment of condemnation, or in procuring a sale of defendant’s said lands, or the timber thereon, or in procuring a forfeiture of the right of said railroad company to operate said railroad, in case the same should be constructed, and not operated in accordance with law.”

The answer of the defendant, as we construe it, denies that the services of plaintiff, as alleged in the first cause of action, were reasonably worth any greater sum than five hundred dollars; and as to the second cause of action, denies that he ever agreed to pay plaintiff one thousand dollars, or any other sum, on either of the contingencies therein alleged, and alleges that he, defendant, “ entered into an express contract with plaintiff, whereby plaintiff agreed to render his services as an attorney at law in defending defendant against said action set forth in said complaint, and in all matters connected with said action, and, if possible, to negotiate the settlement thereof by sale of defendant’s timber, for the sum of five hundred dollars, and no more,” and that the same had been paid.