Ballard v. Carr

48 Cal. 74

• Court: California Supreme Court
• Decided: July 1, 1874
• Docket: No. 2,780
• Status: Published

Opinion

By the Court, Rhodes, J.:

There is not sufficient evidence in the case to support the defense, that the contract entered into between Hartman and the defendant was .contra, bonos mores. The title to the rancho had already been confirmed, and Hartman undertook to resist a motion in the nature of a motion for a new trial, and to procure an order making the decree of confirma'ion final, or to procure a dismissal of -the appeal, should an appeal be taken to the Supreme Court of the United States. In performing such services, it is not shown that any concealment or improper practices were to be, or were in fact, employed by Hartman.

The objection that the contract cannot be enforced, because of the want of mutuality, cannot be-sustained. (Hall v. Center, 40 Cal. 63.)

The evidence shows that after the defendant had employed Patterson to re-argue the motion before the District Court, he continued to recognize Hartman as his attorney, and availed himself of his service. This must be regarded as a waiver of a full performance of the contract on the part of Hartman. The plaintiff having appealed to a Court of Equity to enforce the performance of the contract on the part of the defendant, must himself do equity, and must • submit to such terms as a Court of Equity would impose. Compensation must be allowed to the defendant, for the services of Patterson, and it must be made an equitable lien in favor of the defendant, upon the land to which the plaintiff is entitled under the contract. The amount of the compensation is the value of the services rendered by Patterson. The defendant will be permitted to amend his answer, if he so elects, on the return of the canse.

Judgment and order reversed, and cause remanded for a new trial. Bemitiitur forthwith.

Mr. Chief Justice Wallace, being disqualified, did not sit in this case.