Ellis v. Woodburn

Citations

• 3 Cal. Unrep. 288
• 24 P. 893
• 1890 Cal. LEXIS 1167

Syllabus

<p>Attorneys—Contingent Fees—Evidence.—In an action for the recovery of attorney fees, the first count of the complaint was on a quantum meruit. The second count alleged that defendant promised to pay plaintiff an absolute fee of $500 for conducting certain litigation, and $1,000 in addition upon the contingency that plaintiff conducted said litigation successfully. The answer admitted that defendant promised to pay the absolute fee, but denied that he promised to pay any contingent fee. Held, that expert testimony was inadmissible to prove what would be a reasonable contingent fee, as the reasonableness of said fee was not in issue. The right to recover such fee depended entirely upon the proof of the alleged promise to pay it, and the performance by plaintiff of his part of the contract.</p> <p>Attorneys — Contingent Fees — Instructions.— The court instructed the jury that it was admitted that plaintiff did render some service, and “if you do not find that there was an express contract, as stated by either plaintiff or defendant, the services being admitted, and it being admitted that plaintiff has been paid $500 for his services, if you are satisfied that plaintiff’s services were worth more than the $500 you will render a verdict for plaintiff for any amount above $500 that you find such services to be worth, not exceeding the sum of $1,000.” Held, that the testimony having been as to what would have been a reasonable contingent fee under all the circumstances, and as to what would be a reasonable attorney’s fee, in the case, taking into consideration not only the services actually rendered, but others which the plaintiff agreed to render, and there being no evidence as to what the services actually rendered were worth, it was error to give the instruction.</p> <p>Beatty, C. J., dissenting.</p>