Knight v. City of Eureka

THE COURT. Action upon an express contract to recover for services as attorney at law. At the close of plaintiff’s evidence the court gave judgment of nonsuit, from which plaintiff appeals.

It appears that an action was brought against defendant in the circuit court of the United States, at San Francisco, on January 21, 1886, by certain Chinamen who sued for damages alleged to have been suffered by reason of the destruction of their property by a mob in defendant city on February 27, 1885. These claims aggregated the sum of one hundred and thirty-two thousand eight hundred and twenty dollars. Defendant employed S. M. Buck, Esq., by ordinance of its council, to take charge of the suit. The ordinance recited the pendency of the action against the city and the necessity to retain counsel to defend it, and concluded as follows: “Therefore, it is ordered that S. M. Buck, Esq., be and he is hereby retained and authorized to act for the city of Eureka as its attorney in defense of said action; and he [193]is also authorized to retain and associate with himself in defense of said action some able attorney and counselor residing in San Francisco, California, if, in his judgment, it becomes necessary. And said S. M. Buck, Esq., is instructed to conduct said defense as economically as it can be done consistent with vigorous and successful defense thereof.” Acting under this authority and not otherwise, Mr. Buck retained plaintiff and entered into an agreement with him on March 2, 1889, by which he employed plaintiff as an attorney on behalf of defendant, to assist in the defense of said action, and, “on behalf of defendant, agreed to and with said Knight that said city of Eureka would pay him the sum of five thousand dollars for such retainer and services.” Plaintiff “accepted said employment and rendered such services for defendant from time to time in said action during its pendency as were required of him, such services consisting of consultations with S. M. Buck”; and the defendant in that action prevailed. It appeared that the council were not informed of Mr. Knight’s employment until after Mr. Buck presented his claim for payment in May, 1889, and not until in 1890,' as Mr. Knight testified, at which time he presented his bill to the council. The reason for not sooner informing the council was stated to be that it was thought Mr. Knight could be more serviceable if his employment were kept a secret. He did not appear in court, but did talk with the attorney of the Chinamen about the case in addition to consulting with Mr. Buck. The extent or nature of plaintiff’s services, however, do not seem to be material, as he does not sue for their value but upon the contract.