Lavine v. Davis

HERNDON, J. Plaintiff Morris Lavine appeals from a judgment in favor of defendant Muriel Davis in an action in which plaintiff sought to recover attorney fees. Another named defendant, Gary Davis, although served with summons, failed to appear or answer. It does not appear that any judgment has been entered with respect to him and he is not a party to this appeal.

[648]Plaintiff’s complaint is in three counts: (1) on an express oral contract alleging that defendants hired plaintiff “as an attorney at law to render to them and for and on their behalf legal services, for which they, the said defendants, then and there agreed to pay to plaintiff the reasonable value thereof; . . . [t]hat pursuant to said contract plaintiff rendered to, for and on behalf of defendants legal services and that the balance due for the reasonable value thereof was and is the sum of [$25,000] . . and that after demand defendants had failed and refused to pay,- (2) on an alleged open book account; and (3) on an account stated for $25,000 for legal services. Each count alleged that said legal services constituted “necessities.”

The trial court found that as to the defendant Muriel Davis all the material allegations of the complaint were untrue; that she did not hire plaintiff or agree to pay him anything; and that as to her no account was stated. It appears from the memorandum opinion of the trial judge that his findings were based upon evidence which strongly tended to prove that at all times prior to the commencement of this action plaintiff looked entirely to defendant Gary Davis for payment of his fees, and that neither party ever understood or intended that Muriel would be obligated to pay them. Plaintiff offered no evidence to prove the open book account.

Appellant’s unmeritorious contention that the findings are not supported by the evidence is based largely upon the fallacious notion that in determining the sufficiency of the evidence to support the findings in favor of respondent, her testimony given under examination pursuant to section 2055 of the Code of Civil Procedure must be disregarded. The true rule with respect to testimony given under section 2055 is stated as follows in Leonard v. Watsonville Community Hospital, 47 Cal.2d 509, 516 [305 P.2d 36] : “It is clear, however, that all such testimony is evidence in the case and that the provision in the section that a party calling an adverse witness shall not be bound by his testimony does not mean that such testimony may not be given its proper weight, ‘but, merely, as it declares, that the party calling such witness shall not be concluded from rebutting his testimony or from impeaching the witness.’ ” (See also Witkin, California Evidence, 662, § 613.) Appellant’s reliance upon Anthony v. Hobbie, 25 Cal.2d 814 [155 P.2d 826], is completely misplaced; the case deals with an entirely different question.