Miller v. Ballerino

VAN DYKE, J. Appeal from a judgment in favor of the plaintiff, in the sum of one thousand dollars, and from' an order denying defendant’s motion for a new trial. The action is brought by the plaintiff, as assignee of Hatch, Miller & Brown, to recover for services rendered by them in the suit *568 of Ballerino v. Ballerino, in the superior court of Los Angeles County. The appellant contends that the court erred in overruling the defendant’s demurrer to the plaintiff’s complaint. The complaint alleges that between the twenty-fifth day of March, 1896, and the first day of June, 1897, Hatch, Miller & Brown rendered services to the defendant, upon her retainer of them, in the prosecution of a suit for said defendant against one Bartolo Ballerino, and in counseling and advising said defendant relative to said suit and her interests therein involved; that said services are reasonably worth the sum of $2,500; that the same has not been paid; and that said claim had been properly assigned to the plaintiff by Hatch, Miller & Brown. In support of the contention of the appellant that the complaint was insufficient, it is said that it nowhere appears that the parties who rendered the services were attorneys and had a license to practice as such. In reply respondent contends that the court will take notice of who are the attorneys at law practicing before it. However this may be, there is no case cited from this state where it is held to be necessary to aver that in a suit for services rendered by an attorney it must be alleged that he is an attorney admitted to practice. Besides, thére is nothing in law prohibiting persons other than attorneys from recovering the reasonable value of their services when performed at the request of another. In the finding of the court it is stated that the law firm of Hatch, Miller & Brown were employed to assist in the prosecution of the suit in question, and that said law firm of Hatch, Miller & Brown did, between the date of said employment and the first day of June, 1897, perform services as attorneys for defendant in the prosecution of said cause, and in pursuance of the employment of them by said defendant; and the evidence supports this finding. That being the case, if it were necessary—which we do not hold—that the complaint should have alleged specifically that the parties employed were attorneys admitted to practice, the finding cures the defect as against a general demurrer, and the complaint is sufficient to support the judgment. No variance between the allegation in a pleading and the proof is deemed material, unless it actually misled the adverse party to his prejudice, and the court must in every stage of an action or proceeding disregard any defect *569 in a pleading or proceeding which does not affect the substantial rights of the parties. (Code Civ. Proe., secs. 469, 475.) The appellant also contends that the court erred in excluding evidence offered in reference to the contract between her attorney, J. Marion Brooks, and herself. There can be no question but that the defendant authorized said Brooks to employ the firm of Hatch, Miller & Brown to assist her in the prosecution of the suit. That is testified to by Brooks and admitted by the appellant; but she contends that Brooks was to pay the assistant attorneys so employed, and not herself. Brooks, on the other hand, denies this, and says that their services were to be paid by the appellant. If, as claimed by the appellant, she authorized the employment of Hatch, Miller & Brown to assist Brooks, but that Brooks was to pay for the services, it is not pretended that such an understanding was disclosed to Hatch, Miller & Brown, or that they agreed to look to Brooks for their pay instead of the appellant. Bearing upon the conflict in testimony between Brooks and the appellant, an affidavit of the appellant on an application for an order for an allowance by the defendant in said action of Ballerino v. Ballerino, to pay the services of additional attorneys, was introduced in evidence. In that affidavit she says that “she has contracted to pay J. Marion Brooks the sum of $7,000 for the prosecution of said action, and that affiant" has contracted with said Brooks to prosecute said action for said sum of $7,000; that $6,500 of the $7,000 is secured by mortgage upon the interest of this affiant in the community property; that said defendant has contributed nothing to said cause for attorney’s fees; that the property interests are large, and that one attorney is not sufficient for the proper protection of affiant’s rights in said action; that affiant has employed Hatch, Miller & Brown, attorneys at law, to assist said J. Marion Brooks in the proper prosecution of said cause; that affiant prays this court that a reasonable attorney’s fee be allowed the said Hatch, Miller & Brown, and that defendant may be compelled to contribute such fee.” There was also introduced in evidence an application by her for the substitution, as her attorneys, of J. Marion Brooks and Hatch, Miller & Brown, in place of said J. Marion Brooks. It appears in evidence that the appellant is an ignorant woman, not able to read or write, or to sign her *570 name except by a mark. Still the affidavit referred to, as well as the application for substitution of attorneys, is witnessed by her two sons and daughter, who were able to read and write, and to explain the nature of the instrument signed. The testimony excluded by the court, of which the appellant complains, was in reference to the contract between Brooks and appellant, and, under the circumstances detailed, was entirely immaterial. The terms of that contract seem to have been well understood and admitted. The only material question was as to who was to pay for the services of the additional attorneys. Clearly, the employment of Brooks as an attorney did not authorize him to bind his client in the employment of other attorneys and render the client liable for the payment of their services, and the respondent does not claim anything to the contrary. The contention here is on the part of the respondent that the employment of the additional attorneys was by the client through her said attorney, and that is admitted by the client, as before stated, the only question being as to who was to be responsible for the pay. On that question there is a substantial conflict in the evidence, as already shown, and, that being the ease, the finding of the court cannot be disturbed. The court finds that, pursuant to the authority given him, Brooks, “as the agent of said defendant, and for and on her behalf, retained and employed the said law firm of Hatch, Miller & Brown, as associate counsel to assist in the prosecution of said suit of defendant against Bartolo Ballerino.” This necessarily implies, nothing appearing to the contrary, that the principal—to wit, the appellant—was to pay for their services, and this is the material issue in the ease; and the findings are sufficient to support the judgment. The judgment and order appealed from are affirmed. Garoutte, J., and Harrison, J., concurred. Hearing in Bank denied. Beatty, C. J., dissented from the order denying a hearing in Bank and filed the following opinion on the 31st of March, 1902:—