Burke v. Ikuta

DORAN, J. The present appeal is from a judgment in defendant’s favor denying recovery of attorney fees alleged to be owing by the defendant husband to plaintiff’s assignors for conducting the wife’s divorce litigation. The complaint in three causes of action based on an open book account, an [725]account stated, and for reasonable value of professional services “at defendant’s instance and request,” sought recovery in the amount of $7,500.

Cletus J. Hanifin and Robert B. Sease, attorneys at law, plaintiff’s assignors, had been retained by Mrs. Chiyoko Ikuta, defendant’s wife, in August, 1948, in reference to a divorce action. Community property worth some $300,000 located in California and Honolulu, was owned by Dr. and Mrs. Ikuta. As a result of certain detective work, a complaint for divorce alleging cruelty and adultery, was filed for Mrs. Ikuta, seeking custody of three minor children, support for wife and children, award of all community property, and attorney fees of $10,000. An order to show cause m re alimony, custody, restraining order, attorney fees, etc., was likewise prepared, and copies thereof personally served on Dr. Ikuta on September 10,1948.

Immediately thereafter there began a series of conferences relating to proposed reconciliation, Dr. Ikuta being represented by an attorney Samuels. The last of these conferences took place on October 3, 1948, at which time a reconciliation agreement was arrived at under which Mrs. Ikuta was given three-fourths of the community property. The order to show cause, set for October 6th, was allowed to go off calendar, and a dismissal with prejudice was executed on October 12, 1948, and duly filed.

On November 8, 1948, Mrs. Ikuta’s attorneys, Hanifin and Sease sent a statement to Dr. and Mrs. Ikuta, then reconciled and living together, covering the claimed $7,500 attorney fees. Certain conferences concerning this matter then ensued at which, plaintiff .alleges, Dr. Ikuta agreed to pay said sum which was to be reduced to $6,100 if paid immediately. Dr. Ikuta denies any such agreement. Shortly thereafter Mrs. Ikuta informed Attorney Hanifin that Dr. Ikuta had breached the reconciliation agreement insofar as it pertained to a corespondent and instructed the attorney to file another action for divorce, which action was filed on December 7, 1948.

The present action, seeking judgment against Dr. Ikuta for Mrs. Ikuta’s attorney fees, was filed December 17, 1948, to which the defendant filed answer denying any liability. Thereafter, the answer was amended to include the defense of the statute of frauds. The complaint was likewise amended to include a cause of action for fraud, and alleging estoppel. The action first came to trial before Judge Otto J. Bmme under a stipulation that the matter of liability should first be