The action is brought upon claims assigned to the plaintiff by H.E. Highton, an attorney at law, and is based upon professional services alleged to have been rendered the defendant by said assignor, Highton, in several different cases or matters. The largest amount claimed is in the case of Ashley v. Baldwin, for which the sum of ten thousand dollars is claimed. The case was tried by a jury, and a verdict rendered in favor of the plaintiff in the aggregate of $8,755.60. Defendant's motion for a new trial was denied, the plaintiff having consented in writing to remit from the verdict rendered the sum of $2,642.60. The appeal is taken from the judgment and from the order denying a new trial.
On the appeal the case of Ashley v. Baldwin only will be considered, and it is not necessary to refer further to the other smaller claims. The appellant urges two points on the appeal: —
1. The employment in Ashley v. Baldwin was upon the condition that the amount to be paid for the services should be fixed by the defendant Baldwin, and his agent, Mr. Unruh, and that such amount never was fixed, and the defendant never refused to fix it, and that the present action, brought upon a quantum meruit,
as to that claim cannot be maintained. There cannot be much question that the employment in that case was conditioned. Unruh testified as follows on that point: "I was present at a conversation between Mr. Baldwin and Mr. Highton relative to the employment of Mr. Highton in the Ashley case. My impression is that the interview was suggested by Mr. Highton, Mr. Highton saying that he had had some talk with Mr. Baldwin in relation to the case; and we were to meet in the office to talk over the matter. We met in the office of the Baldwin Hotel, near the door going into the private office, and there Mr. Highton suggested his being employed in the Ashley case, and went on to state that he could be of great service; that he was under such obligations to Mr. Baldwin as would prompt him to render such services faithfully, and do everything that he could for Mr. Baldwin. He expressed himself as being deeply grateful to Mr. Baldwin for the way that Mr. Baldwin had treated him in years past. He referred to his leniency — the leniency with which Mr. Baldwin had treated him with regard to the board bill; the summing up was, in substance, that he would go into the case and do
everything that he could, and I think that either Mr. Baldwin or myself, I don't remember which, suggested that some fee should be specified. Mr. Highton expressly and plainly stated that he would leave that entirely with Mr. Baldwin and myself to fix, without any reservation; and he repeated it half a dozen times, that we should fix the fee; that he would leave it entirely to us; that we had always treated him fairly; and after the interview I made a memorandum of that statement. The making of this memorandum fixes it plainly in my mind. But I find the book in which it is copied, the leaf on which the memorandum was made is torn out; how it came I cannot say. I was distinctly told that he would leave the fixing of the fee to us." Defendant, Baldwin, testified as follows: "The employment of Mr. Highton in the Ashley case occurred in this way: Mr. Highton had asked me a number of times to employ him. He said I had plenty of business, and ought to employ him to give him a chance to pay some of his debt to me. Mr. Lloyd wanted me to employ General Barnes. I was pushed for money, and did not want to pay out money when a man was owing me. I had an arrangement to meet Mr. Highton and Mr. Unruh. I asked Mr. Highton what fee he would charge me. I told him I would like to know the fee before I hired him. After talking around about a number of things, he spoke of how long he had been in the hotel, and how much his wife thought of the house, and the way they had been treated; he went on to say, `I shall leave this entirely to you and Mr. Unruh. I do not make a fee at all; I will leave that to you two; whatever you two say is right, I will be satisfied and willing to take.' Under those circumstances I employed him and told him to go on." Highton, the assignor, testified as follows: "I have a very distinct recollection of the fact that Mr. Baldwin, Mr. Unruh, and myself were together on the outside of the office of the Baldwin Hotel at the time of my engagement in that case; and that when they had stated to me that they wished me to take some part in that case, — in fact, I think it was brought about to some extent by my own suggestion, — Mr. Unruh, according to my recollection, said to me in the presence of Mr. Baldwin, — standing by Baldwin, — `Judge, what about the fee; about compensation?' or something to that effect. I said, `You and I can fix that without any trouble at all, at any time'; that is about just what I said. I cannot repeat the exact language." And the instruction hereafter
noted practically assumes that the employment of Highton in the Ashley case was conditioned as to payment. Otherwise, said instruction is meaningless, as not being applicable to any facts proven. The contract of employment in this case, therefore, being conditioned upon the fixing of compensation in the manner stated, the action as to that part of the case cannot be supported upon a complaint as upon a quantum meruit. The complaint as to this matter should have counted upon the agreement, as alleged in defendant's answer and as proven at the trial, together with an allegation that said agreement had been repudiated by defendant, or that he had refused to act under it in fixing the compensation. As the complaint now stands, the probata andallegata do not at all correspond. (O'Connor v. Dingley, 26 Cal. 21; Victor Sewing Machine Co. v. Scheffler, 61 Cal. 530; Daley v.Russ, 86 Cal. 114; Lavenson v. Wise, 131 Cal. 369.) In the latter case, as in this, the agreement or contract was special, and contained a condition, and the court say: "Under the facts in the case, as they now appear, we are unable to discover any ground upon which the present action on quantum meruit can rest as to the matter of the suit against Murphy and Smalley."
2. The following instruction given by the court at the request of the plaintiff is assigned as error: "If you believe from the evidence that Mr. Highton agreed with Mr. Baldwin and Mr. Unruh at the time of his employment in the case of Ashley v. Baldwin that Mr. Unruh and Mr. Baldwin should fix the amount of compensation for the services to be by him rendered in that case, and that he was to receive and accept the sum they saw fit to name, yet, if defendant, before the commencement of this suit, denied any liability or indebtedness to Highton, and if it was not also agreed between them that no suit should be brought against Mr. Baldwin to recover the value of the services until after such sum or amount had been by Mr. Baldwin and Mr. Unruh so fixed, then, in that event, I charge you that such an agreement, if any, is not a bar or a defense to this action, and plaintiff is entitled to a verdict at your hands for the reasonable value of the services by him rendered, if any, after deducting therefrom any sum or amount due from Mr. Highton to defendant, if any." The instruction assumes that there was evidence going
to show that the defendant, Baldwin, before the commencement of the suit, had denied any liability under that agreement or had refused to recognize it. There is not a particle of evidence in the case justifying such an assumption.
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The action is brought upon claims assigned to the plaintiff by H.E. Highton, an attorney at law, and is based upon professional services alleged to have been rendered the defendant by said assignor, Highton, in several different cases or matters. The largest amount claimed is in the case of Ashley v. Baldwin, for which the sum of ten thousand dollars is claimed. The case was tried by a jury, and a verdict rendered in favor of the plaintiff in the aggregate of $8,755.60. Defendant's motion for a new trial was denied, the plaintiff having consented in writing to remit from the verdict rendered the sum of $2,642.60. The appeal is taken from the judgment and from the order denying a new trial.
On the appeal the case of Ashley v. Baldwin only will be considered, and it is not necessary to refer further to the other smaller claims. The appellant urges two points on the appeal: —
1. The employment in Ashley v. Baldwin was upon the condition that the amount to be paid for the services should be fixed by the defendant Baldwin, and his agent, Mr. Unruh, and that such amount never was fixed, and the defendant never refused to fix it, and that the present action, brought upon a quantum meruit,
as to that claim cannot be maintained. There cannot be much question that the employment in that case was conditioned. Unruh testified as follows on that point: "I was present at a conversation between Mr. Baldwin and Mr. Highton relative to the employment of Mr. Highton in the Ashley case. My impression is that the interview was suggested by Mr. Highton, Mr. Highton saying that he had had some talk with Mr. Baldwin in relation to the case; and we were to meet in the office to talk over the matter. We met in the office of the Baldwin Hotel, near the door going into the private office, and there Mr. Highton suggested his being employed in the Ashley case, and went on to state that he could be of great service; that he was under such obligations to Mr. Baldwin as would prompt him to render such services faithfully, and do everything that he could for Mr. Baldwin. He expressed himself as being deeply grateful to Mr. Baldwin for the way that Mr. Baldwin had treated him in years past. He referred to his leniency — the leniency with which Mr. Baldwin had treated him with regard to the board bill; the summing up was, in substance, that he would go into the case and do
everything that he could, and I think that either Mr. Baldwin or myself, I don't remember which, suggested that some fee should be specified. Mr. Highton expressly and plainly stated that he would leave that entirely with Mr. Baldwin and myself to fix, without any reservation; and he repeated it half a dozen times, that we should fix the fee; that he would leave it entirely to us; that we had always treated him fairly; and after the interview I made a memorandum of that statement. The making of this memorandum fixes it plainly in my mind. But I find the book in which it is copied, the leaf on which the memorandum was made is torn out; how it came I cannot say. I was distinctly told that he would leave the fixing of the fee to us." Defendant, Baldwin, testified as follows: "The employment of Mr. Highton in the Ashley case occurred in this way: Mr. Highton had asked me a number of times to employ him. He said I had plenty of business, and ought to employ him to give him a chance to pay some of his debt to me. Mr. Lloyd wanted me to employ General Barnes. I was pushed for money, and did not want to pay out money when a man was owing me. I had an arrangement to meet Mr. Highton and Mr. Unruh. I asked Mr. Highton what fee he would charge me. I told him I would like to know the fee before I hired him. After talking around about a number of things, he spoke of how long he had been in the hotel, and how much his wife thought of the house, and the way they had been treated; he went on to say, `I shall leave this entirely to you and Mr. Unruh. I do not make a fee at all; I will leave that to you two; whatever you two say is right, I will be satisfied and willing to take.' Under those circumstances I employed him and told him to go on." Highton, the assignor, testified as follows: "I have a very distinct recollection of the fact that Mr. Baldwin, Mr. Unruh, and myself were together on the outside of the office of the Baldwin Hotel at the time of my engagement in that case; and that when they had stated to me that they wished me to take some part in that case, — in fact, I think it was brought about to some extent by my own suggestion, — Mr. Unruh, according to my recollection, said to me in the presence of Mr. Baldwin, — standing by Baldwin, — `Judge, what about the fee; about compensation?' or something to that effect. I said, `You and I can fix that without any trouble at all, at any time'; that is about just what I said. I cannot repeat the exact language." And the instruction hereafter
noted practically assumes that the employment of Highton in the Ashley case was conditioned as to payment. Otherwise, said instruction is meaningless, as not being applicable to any facts proven. The contract of employment in this case, therefore, being conditioned upon the fixing of compensation in the manner stated, the action as to that part of the case cannot be supported upon a complaint as upon a quantum meruit. The complaint as to this matter should have counted upon the agreement, as alleged in defendant's answer and as proven at the trial, together with an allegation that said agreement had been repudiated by defendant, or that he had refused to act under it in fixing the compensation. As the complaint now stands, the probata andallegata do not at all correspond. (O'Connor v. Dingley, 26 Cal. 21; Victor Sewing Machine Co. v. Scheffler, 61 Cal. 530; Daley v.Russ, 86 Cal. 114; Lavenson v. Wise, 131 Cal. 369.) In the latter case, as in this, the agreement or contract was special, and contained a condition, and the court say: "Under the facts in the case, as they now appear, we are unable to discover any ground upon which the present action on quantum meruit can rest as to the matter of the suit against Murphy and Smalley."
2. The following instruction given by the court at the request of the plaintiff is assigned as error: "If you believe from the evidence that Mr. Highton agreed with Mr. Baldwin and Mr. Unruh at the time of his employment in the case of Ashley v. Baldwin that Mr. Unruh and Mr. Baldwin should fix the amount of compensation for the services to be by him rendered in that case, and that he was to receive and accept the sum they saw fit to name, yet, if defendant, before the commencement of this suit, denied any liability or indebtedness to Highton, and if it was not also agreed between them that no suit should be brought against Mr. Baldwin to recover the value of the services until after such sum or amount had been by Mr. Baldwin and Mr. Unruh so fixed, then, in that event, I charge you that such an agreement, if any, is not a bar or a defense to this action, and plaintiff is entitled to a verdict at your hands for the reasonable value of the services by him rendered, if any, after deducting therefrom any sum or amount due from Mr. Highton to defendant, if any." The instruction assumes that there was evidence going
to show that the defendant, Baldwin, before the commencement of the suit, had denied any liability under that agreement or had refused to recognize it. There is not a particle of evidence in the case justifying such an assumption. In his answer defendant sets forth the agreement, and avers "that said Highton has never submitted the matter of his compensation for his services in the case aforesaid to this defendant and said Unruh, and that he has not heretofore and prior to the commencement of this action requested them to determine the amount to be paid to the said Highton, for his said services." And he further avers that he and said Unruh have always been ready and willing to fix and determine the amount to be paid to Highton for his services in said case. It is true Baldwin had stated that he did not owe Highton anything. That statement of Baldwin's is entirely consistent with the averments in the answer, from the fact that it appears from a statement of Baldwin's agent, Unruh, that Highton was indebted to Baldwin, aside from the services in question, in the sum of $3,177, and doubtless Baldwin supposed that that would be sufficient to compensate Highton for such services. Baldwin says, in explanation of his statement: "I did not deny that there was an agreement between Mr. Highton and myself with reference to this employment and compensation in the case of Ashley v. Baldwin, because that would have been a mistake; I could not have understood the question when I answered it, because we had an understanding." Highton admitted that he was indebted to Baldwin at the time, and claims that it was only $1,200, and said that Mr. Baldwin had treated him very nicely, and that if Baldwin had some employment he would be willing to give to him he would be very glad to receive it. "I made that suggestion more than once; probably two or three times."
The portion of the instruction holding that unless it was agreed between them that no suit should be brought to recover the value of his services until after such sum or amount had been fixed by Baldwin and Unruh, that then the agreement would be no bar or defense to the action, and plaintiff was entitled to a verdict for the reasonable value of his services, is a proposition of law unsupported by the authorities. Holmes v.Richet, 56 Cal. 307,1 was an action upon a
builder's contract, which contained this clause: "But should any dispute arise respecting the true value of the extra work or works omitted, the same shall be valued by two competent persons, one employed by the owner, the other by the contractor. In case they cannot agree, those two shall have the power to name an umpire, whose decision shall be binding upon all parties." It was claimed in that case that the agreement to submit to arbitration was independent and collateral. The court replies to this: "But that is not this case. Here the party simply agreed that the amount or value of certain extra work should be fixed in a certain manner, and was there any right of action in this case for and on account of said extra work until the value thereof was fixed according to the terms and conditions of the contract? In other words, was it not a condition precedent to any right of action, that the value of the extra work should be determined in the mode provided by the contract?" The court, after citing a number of cases from England and this country, held that the stipulation in the contract was not an independent collateral agreement to submit to arbitration, but was a part of the contract itself, and that it was a condition precedent to the right of action on the contract. Further on, in reference to the proposition referred to in the instruction, that it was not agreed that no suit should be brought until the price of the extra work and material should be fixed as stated, the court says: "It is true, that the contract in this case does not declare that no action shall be brought until the amount of damages has been fixed; but that is the meaning and legal effect of the contract. In the case (President etc. Delaware etc. CanalCo. v. Pennsylvania Coal Co., 50 N.Y. 250) referred to it is said: `When, as here, the agreement is, that the covenantor shall pay such sum and only such sum as shall be determined by arbitrators, the procuring an award is as clearly a condition precedent to an action as if the parties had added, and no action shall be maintainable until after the award of the arbitrators. Such a clause would be surplusage, and its insertion a work of supererogation.'" (See, also, Loup v. California So. R.R. Co.,63 Cal. 97; M.E. Church v. Seitz, 74 Cal. 292.)
Against the doctrine announced in the foregoing cases, in reference to the clause constituting a condition in the contract precedent to the right of recovery, the respondent cites Remy v. Olds, 88 Cal. 542; Hamilton v. Home Ins. Co., 137 U.S. 370. In the former case the defendants had personally notified plaintiff in writing that they would not furnish the deed or make the conveyance stipulated, and the court very properly held that in such case a demand was unnecessary; that the law did not require a vain thing. The latter case was a suit upon an insurance policy, and it is said with reference to the defense set up: "There are two cases where such a plea as the present is successful, — first, where the action can only be brought for the sum named by the arbitrators; secondly, where it is agreed that no action shall be brought until there has been an arbitration, or an arbitration shall be a condition precedent to the right of action. In all other cases where there is, first, a covenant to pay, and, secondly, a covenant to refer, the covenants are distinct and collateral, and the plaintiff may sue on the first, leaving the defendant to bring an action for not referring, or to stay the action until there has been an arbitration. Applying this test, it is quite clear that the separate and independent provision, in the policy now before us, for submitting to arbitration the amount of the loss, is a distinct and collateral agreement." Here, however, as in the case of Holmes v. Richet, 56 Cal. 307,1 it is a part and parcel of the agreement that the compensation should be fixed in the manner stated, and not a collateral or independent agreement to submit to arbitration. But it is said by the respondent that the instruction complained of, if erroneous, was without prejudice or injury to the appellant, because he had denied liability under the agreement.
The instruction assumed, against the evidence, as already shown, that defendant had repudiated the agreement, — denied liability under it, — and held that unless it was expressly stipulated in the agreement, — which it was not, — that no suit should be brought until after the amount had been fixed, then it was no defense, and the plaintiff was entitled to a verdict. It appears, therefore, very clearly that this erroneous instruction in effect disposed of the case in favor of the plaintiff.
The judgment and order denying a new trial are reversed and the cause remanded.
Garoutte, J., concurred.
1 38 Am. Rep. 54.
1 38 Am. Rep. 54.