Owen v. Meade

De HaveN, J. The plaintiff sues as the assignee of one Grady to recover the sum of $950, balance alleged to be due for professional services rendered by the said Grady in the prosecution of a certain action brought by the defendant against the county of Fresno. The complaint, which is unverified, alleges that the defendant expressly agreed to pay to said Grady for such services the sum of $1,000, and also alleges that the services so rendered by Grady were reasonably worth the sum of $1,000. The answer contains a general denial, and in addition sets out a separate defense in which it is alleged “that the only services rendered by said W. D. Grady were done and performed under and upon a special contract and agreement with said Grady that he, said Grady, would do and perform the service to be rendered and performed under said agreement for the sum of $50,” and that Grady was paid said sum before the alleged assignment to plaintiff. The action was tried by a jury, and the plaintiff recovered judgment in the superior court for the full amount demanded in the complaint; and from this judgment and order denying his motion for a new trial the defendant appeals.

1. Grady, the assignor of plaintiff, was a witness upon the trial, and testified in substance that he acted as the attorney for defendant in the action of Meade v. County of Fresno, under an agreement by which he was to receive for such services what is known among lawyers as a contingent fee. In the action referred to there was involved, among other matters, a question as to the right of the defendant here to recover, upon his original demand, interest, amounting to about $1,800, and the witness, Grady, stated the following as the contract between himself and defendant in relation to the compensation he was to receive as attorney for the latter in [181]that action: “I says, if I recover this interest it will more than pay my fee, and save yon that much money. The interest would be about $1,800. I will charge you a $1,000 out of that, and, if I don’t recover it I shall charge you ten per cent of what I do recover; and if I recover nothing I will charge you nothing”; and, referring to the amount of labor performed by him in that case, the witness further stated: “I think I gave it more attention considering that my fee was to be contingent, a good one, and depended entirely upon what I recovered.”

The defendant moved to strike out this testimony in relation to the contingent fee, upon the ground that there was no such issue in the case, the complaint alleging that plaintiff’s assignor was to receive $1,000 for his services, without any reference to the result of the action in which they were rendered. The motion was denied by the court, and the court also instructed the jury to the effect that if they found “ that it was agreed by and between the defendant and Grady that, in case said Grady recovered the full amount of said claim (referring to the claim of defendant against Fresno county), with interest thereon, then the defendant would pay him $1,000, and further find said Grady did in every respect fulfill the terms of the agreement on his part, and did recover, and the defendant did receive, the full amount of said claim with interest, then you must find for plaintiff in the sum of $950.” In refusing defendant’s motion to strike out the testimony above referred to, and in giving the instruction just quoted, the court erred. There is a fatal variance between the contract testified to by the witness, Grady, and hypothetically stated to the jury in the charge of the court, and the contract alleged in the complaint. The contract alleged is that of an unconditional promise upon the part of defendant to pay to the assignor of plaintiff the sum of <$1,000 for his services as an attorney in the prosecution of the action referred to in the complaint, while the evidence which the court held was relevant and suffi