Chapman v. Neary

California Supreme Court Nov 24, 1896 No. S. F. No. 247Published

Before: Belcher

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Holding. The court affirmed a judgment awarding an attorney fees for professional services rendered, holding that the trial court's findings were supported by evidence and that there was no material variance between the complaint and the findings.

Issues

Whether a discrepancy between the amount alleged in the complaint and the amount found by the court constitutes grounds for reversal.
Whether the evidence was sufficient to support the trial court's findings of fact.
Whether the trial court erred in denying a motion for nonsuit.
Whether the trial court erred in excluding testimony regarding private conversations between the defendant and her other counsel.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The fact that the complaint avers that, under the agreement between the parties, the first payment to the plaintiff was to be one thousand dollars, while the court found that it was to be only seven hundred and fifty dollars, is no ground for a reversal.”

“After a careful inspection of the record we think there was evidence tending to support each of the findings, and the judgment cannot therefore be reversed on this ground.”

“There was no error in denying the defendant’s motion for nonsuit.”

Synopsis

Action foe Attorney’s Fees— Recovery by Plaintiff — Finding for Defendant as to Part of Fee. — In an action for attorney’s fees, where plaintiff recovered a less sum than the amount claimed, the fact that the complaint averred an agreement for the sum of three thousand dollars, to be paid in three payments, each of which was agreed to be one thousand dollars, while the answer denied such agreement, and averred that the plaintiff was to have only seven hundred and fifty dollars in full for his services, a finding by the court that plaintiff’s first payment was to be only seven hundred and fifty dollars, and that additional payments of one thousand dollars each were agreed upon, is not ground for reversal, but is within the issues raised. '

In.—Conflicting Evidence—Review upon Appeal.— Where there is a clear conflict of evidence upon the issues, and the record discloses evidence tending to support the findings, the judgment cannot be reversed for insufficiency of the evidence to sustain the findings.

Id.—Nonsuit—Prima Facie Case.—A motion for nonsuit should be denied when the plaintiff has made out a prima facie case, and there is no material variance between the averments and the proofs.

Id.—Evidence—Conversations in Absence of Plaintiff.—Evidence of transactions and conversations between the defendant and his attorney in the absence and without the knowledge of the plaintiff, is inadmissible against the plaintiff.

Belcher, C. This is an action to recover for professional services, alleged to have been rendered by the plaintiff, as an attorney at law, for the defendant, Mary A. Neary. The court below found the facts, and gave judgment in favor of the plaintiff, from which and from an order denying a new trial defendants appeal.

The action in which the services are alleged to have [80]been rendered was commenced March 30, 1888, in the superior court of Alameda county, by the defendant herein, Mary A. Neary, then Mary A. Godfrey, to obtain a divorce from her husband. George Godfrey. The defendant in the action denied the plaintiff's right to a divorce, and filed a cross-complaint, asking that a divorce be granted to him. The trial of the cause wras commenced September 25th, and concluded October 29, 1888, and it consumed just nineteen days of the intervening time.

On November 30, 1888, the court announced from the bench that the plaintiff had failed to make out her case, and the defendant had made out a case on his cross-complaint, and thereafter, on January 9, 1889, it made and entered its judgment and decree granting to the defendant and cross-complainant a divorce from the plaintiff in said cause. The plaintiff moved for a new trial on a statement of the case, and her motion was denied April 15, 1889. Thereupon she appealed from the judgment and order. The appeal from the judgment was dismissed at the request of the appellant on June 21,1889, and the appeal from order refusing a new trial was dismissed, upon like request, on August 24, 1891. On the next day after the appeal from the judgment was dismissed, June 22, 1889, the appellant, Mrs. Godfrey, was married to her codefendant here, Nicholas E. Neary.

It is averred in the complaint in this case that the plaintiff was an attorney and counselor at law, and as such was engaged and retained by the plaintiff in the divorce case at the time the action was commenced; that he continued to render services as such attorney for the plaintiff in that action, without any specific agreement or contract as to his compensation therefor, until some time in November, 1888, when he and Mrs. Neary, then Mrs. Godfrey, entered into an agreement that in consideration that he would continue to render professional services for her in said action she would pay him for his services one thousand dollars down, one thousand dollars more when the motion for new [81]

Chapman v. Neary

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