McCarthy v. Superior Court

GOODELL, J. This proceeding arises out of an action for damages for breach of contract, pending in the Superior Court, San Francisco, wherein A. L. Adkins and John J. Wintersteen are plaintiffs and Robert McCarthy, the petitioner herein, is defendant. The complaint therein alleges that in 1942 petitioner engaged Adkins and Wintersteen to obtain for him certain contracts; that they procured two contracts for war housing projects at Richmond and one for a similar project at Alameda, and that petitioner’s gross profit from the three contracts was $385,000; that ten per cent is a reasonable sum for their services, and that petitioner has refused to pay. The demand is for $38,500.

The petitioner filed an amended answer wherein by a separate defense he pleaded that by presidential orders contracts such as those sued on are illegal. The ease is ready for trial before a jury. It is properly triable by jury (Code Civ. Proc., § 592) and the parties have stipulated to so try it.

Petitioner, proceeding under section 597, Code of Civil Procedure, made a motion for ‘ ‘ an order to proceed to trial upon the special defense . . . that the alleged contract ... is illegal and void as against public policy and good morals.” The presiding judge in granting the motion made an order (obviously in the interest of efficiency and economy) reading as follows: “In this action the motion for a separate trial on the special issue of illegality ... is granted but on condition that in the event the verdict of the jury on that issue is against the defendant the same jury shall forthwith proceed to hear testimony and render a verdict on the other issues in the case, and on the further condition that the evidence taken on the issue of illegality, so far as it is relevant, competent and material, shall be considered on the trial of the remaining issues of the ease.”

Petitioner later made a motion to strike the conditions from the order on the ground that the issue touching public policy is one of law which must be determined by the court. This motion came before the succeeding presiding judge, who denied it and then set the ease for trial.

The petitioner alleges herein, and now contends, “that the action of said Respondent and the action proposed to be taken by Respondent Court in the selection of a jury for the trial of the issue of public policy involved therein are in excess of the jurisdiction and authority of said Respondent Court,” and the prayer is that the respondent court be prohibited [945]