Knight v. Whitmore

GAROUTTE, J. Plaintiffs have brought this action to recover for legal services, and, judgment going against them, have appealed to this court. They rely upon an alleged oral contract of hiring. As a defense the defendant set out an agreement in writing, which is in the following language: “Pasadena, Cal., April 8, 1895. “In the Matter of the Estate of George S. Foster, Deceased— Agreement as to compensation. “We do hereby agree with Mrs. Rosa L. Whitmore, administratrix of said estate, that we will proceed immediately with the above estate in the superior court, and will push the same as fast as possible, and will pay all extra costs in said case occasioned by an error upon our part; and when the case is entirely completed and the property distributed, and she is properly discharged as such administratrix, she shall determine for herself what our compensation as attorneys shall he, and we will make no charge or demand against her or said estate for our services as attorneys. “(Signed) KNIGHT, SIMPSON & HARPHAM, “By C. M. Simpson.” The aforesaid agreement was not denied by affidavit, as provided in section 448 of the Code of Civil Procedure; therefore its genuineness and due execution must he deemed admitted for all the purposes of the trial. (Moore v. Copp, 119 Cal. 429.) Simpson was a member of the legal firm of Knight, Simpson & Harpham for a year immediately prior to April 1, 1895, hut it is now claimed by plaintiffs that this firm was dissolved upon said April 1st, and that, therefore, Simpson bad no authority to hind them by the contract he entered into in behalf of the [200] firm with defendant. It is somewhat strange that a member of the bar should enter into a contract purporting to bind a firm of which he had been a member, and which had been in existence at a very recent date, if the firm was not in existence at the time the contract was made. This fact alone might be deemed sufficient to create a conflict in the evidence upon the question as to whether or not the firm of Knight, Simpson & Harpliam was dissolved in fact at the time this contract was entered into. But we need not rest alone upon this proposition. The contract upon its face shows that Knight, Simpson & Harp-ham agreed to perform the services specified without charge or demand against defendant or said estate. Plaintiffs admit the genuineness and due execution of this contract. Such admission carries with it the genuineness 'of the signatures and the fact of its execution, and also necessarily the further fact that Simpson had authority to sign the names of these plaintiffs to the document. It follows therefrom that this contract bound plaintiffs to do this work equally with Simpson, and they could not evade the force and effect of its provisions by a dissolution of the firm after that time. If such a firm was in existence, they were bound as a firm. If it was thereafter dissolved, they were bound individually. Even conceding that plaintiffs alone did all the work, it makes no difference. It would require very clear evidence to indicate that there was a second contract entered into by plaintiffs with defendant, under which they performed this labor, and that this written contract was displaced thereby. The jury declared to the contrary, and we are entirely satisfied with the view they took of the facts. The trial court refused to give the jury the following instruction: “The jury are instructed that the only effect of the failure to deny under oath the contract of April 8, 1895, is to admit its due execution and genuineness, but does not dispense with its introduction in evidence, and that, as the defendant did not offer the contract in evidence, the jury are not to take the same into consideration in forming their verdict in this case." This instruction was properly refused. The writing having been sot out in the pleading, and its genuineness and due execution having been admitted, a formal offer in evidence of the original [201] document was not necessary. (Rosenthal v. Merced Bank, 110 Cal. 198; Brooks v. Johnson, 122 Cal. 570.) The point is made that there is no allegation in the affirmative defense alleging that the services performed by plaintiffs were performed under- the said written contract. Even conceding such an allegation necessary, we deem the matters set out are fairly the equivalent of such an allegation, and evidence was introduced to that effect without objection. There is no merit in the remaining questions raised by the appeal. For the foregoing reasons the judgment and order are affirmed. McFarland, J., and Harrison, J., concurred.