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District Court of Appeal, Second District, Division 1, California.


Civ. 11474

Decided: July 19, 1938

Victor A. Berry, in pro per., and Earl Blodgett, of Los Angeles, for appellant. H.W. Shaw, of Los Angeles, and Pearson C. Schaefer, of Glendale, for respondent.

Appellant brought an action against the respondent mutual water company to recover the sum of $2,150 for alleged legal services rendered by him to said company during the period of May 1, 1933, to May 20, 1935, in the handling of five causes of action which are itemized in a bill of particulars set out in the engrossed bill of exceptions on file herein. The first cause of action is for reasonable value of such services, and the second cause of action is based upon an open book account.

Respondent in defense alleged payment for the services rendered during the period in question, and also set up two oral agreements, one of April 12, 1933, pursuant to which it is alleged appellant was to handle all legal business for respondent on a monthly retainer of $50. The other oral agreement is alleged to have been entered into on September 12, 1934, under the terms of which appellant was to continue to receive the monthly retainer of $50 and in addition thereto the sum of “$50 per day while on trial in court for any and all cases then pending”.

This is the second appeal in the case, the first being reported in 11 Cal.App.2d 479, 53 P.2d 1032, reversing a judgment for appellant. In the instant trial, judgment was rendered in favor of respondent corporation, from which judgment this appeal is taken.

Upon direct examination, appellant testified concerning the items of the bill of particulars upon which he is suing: “None of these sums of money have been paid to me, no part of it.” Upon cross-examination, appellant was asked “During the years 1933, 1934 and up to the first of May, 1935, did you receive any moneys from the Maywood Mutual Water Company?”, to which question appellant objected; his objection being overruled, he duly excepted to the ruling and answered: “The retainer fee was started about February 1, 1934. That was on account of the time involved. My time was taken up constantly by Mr. Goodway. I had a conversation with him at the office of the company. I told him he took up too much of my time and that I wanted $50.00 a month retainer, and that would not include any appearance in court. I was not paid the retainer fee for the month of May, 1935.” Respondent then introduced its letter to appellant dated May 9, 1935, to-wit:

“Dear Sir: The Board of Directors, at their meeting on the 8th inst. passed a resolution to discontinue your employment on a monthly salary basis, but to continue your employment in the cases now on file. To-wit, The Gale case, the Strauss case, and the case against the old Board, on a fifty dollar ($50.00) per day basis for time in Court when the cases are tried, and instructed me to notify you of their decision. Respectfully, Miriam Kelly, Sect.”

Thereupon, over the objection of appellant, respondent's exhibits thirty-six in number, “C to LL”, were received in evidence. Exhibits “C to 0”, inclusive, were thirteen receipts dated June 10, 1933, to January 3, 1934, signed by appellant acknowledging receipt of various sums of money aggregating $475 to apply on attorney's fees. Exhibits “P to LL” consisted of twenty-three checks dated February 5, 1934, to May 1, 1935, made payable to appellant and aggregating the sum of $1,400. From notations appearing on the face of each check, as well as from the testimony of appellant, it appears that fifteen were given in payment of the monthly retainer from February, 1934, to and including April, 1935, and the other eight were for services rendered in connection with cases other than those itemized in the bill of particulars and for which appellant is here seeking compensation.

Appellant urges that the court erred in admitting this evidence, first, because it was not proper cross-examination in that it was unnecessary for appellant to prove nonpayment of the debt sued upon; and second, because the introduction of the checks and receipts, none of which tended to reduce his demands in this action in any manner, was in anticipation of respondent's defense of payment.

In support of this contention, appellant cites the case of Haines v. Snedigar, 110 Cal. 18, 42 P. 462. That was an action on a promissory note, alleged in the usual form. The answer admitted making the note but pleaded part payment and a contract in writing as defenses. Upon direct examination of plaintiff Haines, the promissory note was presented, and he testified that it belonged to plaintiffs and was signed by defendant, whereupon it was admitted in evidence, and the witness added: “No part of that note has been paid.” On cross-examination the witness testified that the consideration for the note was a harvester. Defendant's counsel was then permitted, against the objection of plaintiffs, to prove that after the execution of the note a new agreement was entered into between the parties, which agreement was produced, its execution proved, and thereupon, against the objection of plaintiffs, it was admitted in evidence. It was there held (page 21, 42 P. page 463): “We think the court erred in its rulings. The defense set up by defendant involved the plea of an entirely new and distinct contract, made subsequent to the contract upon which the action was based. It was a plea by way of confession and avoidance, involving new matter to be proven by the defendant. Its allegations are, under our Code, to be treated as though denied. The entire answer is made up of affirmative matter. Whatever was necessary to be alleged therein devolved upon the defendant to prove. But he could not, by any recognized rule of procedure, offer such proofs until plaintiffs had made their case, and submitted it to the court. * The limit placed upon cross-examination is so largely within the discretion of the trial court that its action in allowing a wide range to questions upon cross-examination will only be reversed in extreme cases.

“The court might in its discretion, as is often done,permit the defendant to prove by plaintiffs' witness, when on the stand, the due execution of an agreement important to his defense. This course, treated as a mere matter of convenience, was not open to serious objection. To permit this agreement to be then admitted in evidence was, however, quite a different matter.

“It was in effect to inject into the case of the plaintiffs a portion of the defense, and was subversive of known and fixed rules of procedure, and violative of the whole theory upon which those rules are founded. The proof of the execution of the written agreement of August 6, 1892, was not proper in cross-examination, and its admission in evidence was error.

“Greenleaf, in his work on Evidence, volume 1, § 447, after discussing the difficulty of laying down a precise rule in reference to the limit to be placed upon cross-examination, adds: ‘A party, however, who has not opened his own case, will not be allowed to introduce it to the jury by cross-examining the witnesses of the adverse party, though, after opening it, he may recall them for that purpose.’ ”

The situation here is obviously analogous to that announced in the cited case. It was incumbent upon respondent mutual water company to prove payment of the items sued upon by appellant, and as well to prove the existence of the two oral agreements. Such proof was not proper upon cross-examination of appellant before respondent opened its defense, and its admission in evidence was error.

In view of the fact that a reversal of the judgment is deemed advisable, it will not be necessary to consider appellant's second point to the effect that certain findings are not supported by the evidence, are contrary thereto and contrary to each other.

The judgment is reversed.

YORK, Presiding Justice.

We concur: DORAN, J.; WHITE, J.

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