Carter v. Baldwin

De Haven, J. This action is brought by plaintiff as assignee of a contract made by defendant with the law firm of Silent, Wade & Fitzgerald. The complaint was filed on April 14,1890, and alleges, in substancé, that defendant, on February 10,1886, employed said firm of Silent, Wade & Fitzgerald to prosecute certain libel suits then pending and to be brought against one Bell, and also a civil suit against the Los Angeles Times for libelous articles theretofore published, the defendant agreeing to pay for such services two thousand dollars, of which sum five hundred dollars was to be paid in cash, five hundred dollars in sixty days from date of the agreement, “ and the balance of one thousand dollars on the termination of said suits.” The complaint further alleges that the assignors of plaintiff fully performed said contract, and that all of the suits referred to in the agreement have been termi[477]nated, and that defendant has not paid the balance of one thousand dollars agreed to be paid on the termination thereof, and this action is brought to recover such balance.

The answer of defendant denied that plaintiff's assignors had performed the services required of them under the contract stated in the complaint, and in this connection alleged tjiat the suit against the Los Angeles Times was never commenced, and that no services had been rendered therein, as contemplated by said contract.

The action was tried by the court without a jury, and findings were filed, and a judgment rendered in accordance therewith in favor of the plaintiff for the full amount claimed by him. The defendant appeals.

It is conceded that the contemplated suit against the Los Angeles Times was never commenced, and the claim of appellant is, that this being so the plaintiff is not entitled to recover. We think, however, that the evidence tended to show a waiver of performance of this particular service, and the findings of the court fairly construed are to this effect. The evidence upon the part of the plaintiff tended to show that the firm of Silent, Wade & Fitzgerald were employed to assist other attorneys of defendant in the prosecution of the suits referred to in the complaint. The attorneys thus to be assisted were the regular attorneys for defendant, and had commenced the civil suits which were then pending, and according to" the testimony for plaintiff, were to continue as senior counsel not only in these, but were to act-as such in the one to be brought against the Los Angeles Times. The defendant .never went near the firm of Silent, Wade & Fitzgerald after employing them, nor in any manner thereafter requested them to bring the action against the Los Angeles Times, nor did the other attorneys, whom they were employed to assist in the matter, ever call upon them for any service in relation to such suit. When this action was commenced, the period of limitation fixed by the laws of this state within which to commence the action against the Los Angeles Times for the