Whitton v. Sullivan

Garouttb, J. — Action brought by respondent as a .■stenographer and notary to recover for services rendered .appellant in taking testimony, etc., in a contested election case. A special contract, at the rate of thirty cents a ■folio for the original, and five cents a folio for copies, is relied upon as the basis of the action. Appellant admits that such was the contract, but insists that it was conditional upon his final success in securing a seat in Congress, and that if such event did not occur, then the contract price was an amount much less than is now claimed by respondent. Appellant was unsuccessful in his endeavors to oust his opponent, and hence asserts that the contract here relied upon was rendered nugatory by the failure of the condition upon which it was based. Under the authority of Pavisich v. Bean, 48 Cal. 364, and cases there cited, the complaint is unobjectionable.

It is insisted that the court erred in not permitting the appellant to prove the market price for work of a similar character, as tending to show what the contract .in this regard really was.

It is a well-recognized principle of law that where a •conflict of testimony arises between the parties as to the .amount to be paid for services rendered under a contract, that proof of reasonable value or market price is admis■sible as tending to show, to some extent, what price was agreed to be paid, and this principle is stated and approved in Ellis v. Woodburn, 89 Cal. 129. But we do not think the question arises in this case. If the conflict •of testimony arose between the respondent and Bowden, and not, as it does, between appellant and Bowden, then this principle of law could be successfully invoked. Bowden and respondent agree in all respects as to the terms of the contract, and Bowden, as the agent of appellant, made the contract. Appellant testified: “I do not recollect ever having had any interview with Mr. Whitton; all the business that I did was with Mr. Bow-den. I relied upon him as my attorney and confidential [483]adviser.....I made arrangements with Mr. Whitton through Mr. Bowden, my attorney.”

It will thus be seen that Bowden was authorized by appellant to make a contract with respondent to perform this work, and under such authorization he made a contract with respondent, who performed the work thereunder. Appellant’s cause of complaint is, simply, that his agent, Bowden, exceeded the limitations placed upon his powers, by contracting to pay respondent a greater price for the work than was included in his authority of agency. But this is a matter between the principal and his agent, and with which the party doing the work has no concern.