Opinion
Hearing Granted by Supreme Court Nov. 14, 1929
Appeal from Superior Court, Los Angeles County; John L. Hudner, Judge.
Action by Benjamin Elconin against William Yalen and another. From the judgment, plaintiff appeals. Affirmed.
COUNSEL
George D. Higgins, of Los Angeles, for appellant.
V.H. Koenig and J.S. Garnett, both of Los Angeles, for respondents.
OPINION
BURNELL, Justice pro tem.
Appellant, an attorney, brought this action to recover fees claimed to be due him for his services in connection with a claim for damages for personal injuries and the litigation in the superior court arising therefrom. He also sought recovery for legal services in a justice’s court action, and for costs and expenses advanced by him in both matters; but these items, totaling $46.90, were not disputed, and appellant recovered judgment therefor. The portion of the judgment with which appellant is dissatisfied is that wherein the court below awarded him $300 for his services in the matter of the damage claim, and his contention with respect thereto is that neither the judgment nor the findings upon which it is based are supported by or consistent with the evidence.
The amended complaint set up, in the first count, an oral contract between appellant and respondents, whereby appellant was to render all necessary legal services "in the matter of negotiating for settlement or the institution and prosecution of a suit" on account of respondents’ injuries, and alleged "that said defendants agreed to pay to the plaintiff one-third of any sum accepted by them by way of settlement, or for which a judgment might be obtained and collected." It was further alleged— and as to this there is no dispute in the evidence— that appellant, after attempting to effect a settlement, filed suit on behalf of the respondents, and that, after he had caused the action to be set for trial, he was discharged by respondents, and that a judgment was subsequently obtained in the sum of $5,000, which was compromised by respondents for $4,500, which sum was paid to them. The amount asked for by appellant was one-third of the sum thus received by respondents, or $1,500.
The second cause of action was on a common count, merely alleging an indebtedness of $1,500 for services rendered, and alleging that sum to be a reasonable charge therefor.
The answer denied the existence of any contract, and of any agreement to pay a fee of one-third the amount recovered, "or any sum or at all," and denied any and all indebtedness to appellant.
The fact of appellant’s employment was not disputed by respondents in their testimony. There was, however, a sharp conflict as to the terms of that employment. Appellant testified that one-third of the amount recovered was the fee asked by him at the very outset, and that respondents agreed thereto. Respondents, on the other hand, swore that no such agreement as to fees was made, and that appellant offered to handle the matter for 10 per cent. in event of a settlement, and 20 per cent. if the matter went to suit, which offer they accepted.
The court found that the parties had entered into an oral contract for appellant’s legal services, but that they had not agreed to pay him a one-third fee, and that there was no specific agreement as to compensation. It is this finding which is the subject of appellant’s attack on this appeal.
"An express contract is one the terms of which are stated in words" (Civ.Code, § 1620), while "an implied contract is one the existence and terms of which are manifested by conduct" (Civ.Code, § 1621). "A contract is either express or implied" (Civ.Code, § 1619). (Italics ours.) Manifestly it cannot be both. By the testimony of both appellant and respondents, there was an express contract for the employment of appellant and for payment for his services on a contingent fee basis; the only variance in their respective versions was as to the percentage of the amount recovered which he was to receive if successful. It would, of course, have been entirely possible for the parties to have mutually agreed upon the employment of appellant, the nature and scope of the services which he was to render, but to have left the question of the amount or percentage of his remuneration in abeyance; in other words, there might have been an express contract of employment and an implied contract for payment. In this event the implied contract would have been to pay him the reasonable value of his services. Gage v. Atwater, 136 Cal. 170, 68 P. 581; Buck v. City of Eureka, 124 Cal. 61, 56 P. 612. No witness, however, testified to any such arrangement; all agreed that there was an express contract which included terms of compensation.
The court might have accepted appellant’s version of the oral agreement and rejected that of respondents, or vice versa. There was, however, no basis in the evidence before it to justify or support its finding that "*** there was no agreement by or between said parties for any specific sum or compensation. ***" (Italics ours.)
While we are thus in accord with appellant’s contention that the finding above referred to is not supported by the evidence— indeed, is in direct conflict therewith— we are unable to discover in what manner appellant has been prejudiced thereby. The court found that the discharge of appellant by his clients, the respondents, "was with good cause and reason," and neither the correctness of this finding nor the sufficiency of the evidence to support it is disputed by appellant.
While some of the earlier California decisions in cases involving attorney’s fees indicated a different rule (Countryman v. California Trona Co., 35 Cal.App. 728, 170 P. 1069, and Webb v. Trescony, 76 Cal. 621, 18 P. 796), the later cases all hold that even where an attorney is wrongfully discharged by his client prior to the completion of his services, the measure of his recovery is the reasonable value of his services rendered up to the time of his discharge (Hall v. Orloff, 49 Cal.App. 745, 194 P. 296; Ayres v. Lipschutz, 68 Cal.App. 134, 228 P. 720, and Boardman v. Christin, 65 Cal.App. 413, 224 P. 97).
The issue as to quantum meruit was squarely presented in the instant case by appellant’s second cause of action wherein he alleged an indebtedness to himself of $1,500 (plus certain incidental and undisputed amounts) for professional services as attorney, which sum he further alleged to be "a reasonable charge" therefor, and by respondents’ specific denial of these allegations. This issue the court below determined by finding in accordance with the averments of the second cause of action, except as to the reasonable value of the services, which it found to be $300. True, there was no testimony offered or received as to the value of appellant’s services up to the time of his discharge, but in cases of this nature none is required. The court had before it evidence of the nature and extent of appellant’s services, and found in detail with respect thereto, and its findings on this subject are not attacked by appellant. The learned trial judge was empowered to use his own experience and judgment as to the reasonable value of these services, with or without the aid of the testimony of witnesses as to value. Estate of Duffill, 188 Cal. 536, 552, 206 P. 42; Estate of Straus, 144 Cal. 553, 77 P. 1122; Spencer v. Collins, 156 Cal. 298, 104 P. 320, 20 Ann.Cas. 49; Freese v. Pennie, 110 Cal. 467, 42 P. 978; Kendrick v. Gould, 51 Cal.App. 712, 197 P. 681.
Since the appellant could not have recovered, except upon a quantum meruit, it follows that any finding as to the agreed fee would have been immaterial, and prejudicial error cannot be predicated either upon a finding upon an immaterial issue (Hill v. Morrison, 88 Cal.App. 405, 263 P. 573; Wells v. Zenz, 83 Cal.App. 137, 256 P. 484; Woodhead v. Wilkinson, 181 Cal. 599, 185 P. 851, 10 A.L.R. 291), or upon a failure to find upon an issue when such finding would not, if made, necessitate any change in the judgment (Chester R. Pyle Co. v. Fossler, 200 Cal. 204, 252 P. 599, 601). The finding upon the issue of the reasonable value of appellant’s services was determinative of the case, and "if findings are made upon issues which determine the case, other issues become immaterial, and a failure to find thereon does not constitute prejudicial error." Id.
The judgment is affirmed.
We concur: WORKS, P.J.; IRA F. THOMPSON, J.