MILLER v. LANTZ

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District Court of Appeal, Third District, California.

MILLER et al. v. LANTZ et al.†

Civ. 5640.

Decided: January 18, 1937

Oliver O. Clark and Winslow P. Hyatt, both of Los Angeles, for appellants. W. A. Alderson and Miller & Ellis, all of Los Angeles, for respondents.

This action was originally begun against Charles Lantz to collect the sum of $4,618.70, alleged as a balance due from Charles Lantz to the plaintiffs for and on account of professional services as attorneys, by the plaintiffs for the defendant, in a certain case entitled “Broome v. Lantz.” The action appears to be based upon a certain writing, dated May 3, 1926, signed by Charles Lantz, purporting to employ the plaintiffs as his attorneys in the case just referred to. The first and second paragraphs of that writing are in the words and figures following, to–wit:

“To K. A. Miller,

“Herbert N. Ellis.

“Gentlemen:––

“This is to advise you that I employ you as attorneys to assist me in the trial of the case of Broome v. Lantz, No. 10149, in the Superior Court of Ventura County, and agree to pay you a retainer of $800.00, plus the sum of $100.00 per day for each day required to be away from your office or engaged in the said case until the close of same in the Superior Court.

“This employment is not to involve any additional services beyond the Superior Court; if further services are required same to be an additional contract therefor.”

The bill of particulars purporting to schedule the services performed by the plaintiffs in behalf of Charles Lantz is set forth in Exhibit A as follows, to wit:

The plaintiffs had judgment, and the defendants appeal.

The first point made for reversal by the appellants is based upon the demurrer to the complaint filed by the plaintiffs as just stated. The demurrer was both general and special, and was overruled by the court. While many of the assigned reasons why the complaint is insufficient appear to be not well taken, there are assignments in the demurrer which lead us to the conclusion that it should have been sustained, in that the complaint is ambiguous, and it cannot be ascertained therefrom whether the plaintiffs were suing upon the contract set forth in the amended complaint, or some other employment of which the plaintiffs claimed said contract to be evidence, and that it cannot be ascertained from the complaint what services were required to be performed by the plaintiffs, and it cannot be ascertained from the complaint whether the services were rendered under any additional agreement other than that purported to be set out in the second paragraph of the complaint, which includes the excerpt from the writing signed by Charles Lantz.

Section 4 of the complaint reads as follows: “That plaintiffs rendered and performed services as attorneys at law to the defendant for and in the trial of said case, pending in the Superior Court of Ventura County, California, on fifty and one–half days, which appears more particularly in and by a bill of particulars, marked Exhibit A, hereto attached, and made a part of this amended complaint.” This paragraph does not allege that any of the services were performed at the special instance and request of Charles Lantz, nor does it state the length of time that the plaintiffs were performing services for Charles Lantz on the days referred to. In other words, that paragraph of the complaint alleging the length of service is ambiguous, and it cannot be ascertained therefrom whether the services required full time on said days, or whether only a few minutes' attention to the case of Broome v. Lantz were given on each or any of the said 50 1/2 days.

The complaint further fails to state a cause of action, and it cannot be determined therefrom, other than by what we consider a misconstruction of the writing engaging the plaintiffs to act as attorneys for the said Charles Lantz, by what authority the alleged services were performed, as there is no allegation in the complaint setting forth any employment by the said Charles Lantz of the plaintiffs to perform the major portion of the alleged services for which charges are made in said bill of particulars. We may here state that the record shows that Charles Lantz died subsequent to the filing of the plaintiffs' amended complaint and before the trial of the action, and that the executors were substituted in his stead.

There is nothing in the writing signed by Charles Lantz which we have set forth herein and which contains the terms of the employment, authorizing the plaintiffs to proceed and spend days and days in preparing briefs and charging the said Charles Lantz $100 a day therefor. And consequently no basis exists for such charges against the estate of Charles Lantz, deceased. The employment writing signed by Charles Lantz only employs the plaintiffs to assist him in the trial of the case of Broome v. Lantz, for which the plaintiffs were to be paid the sum of $800, plus the sum of $100 per day for each day required to be away from their office or engaged in said case, until the close of the same in the superior court. Specifically, the plaintiffs were employed only to assist; they were not employed to institute or proceed to take any action on their own initiative. The writing does not authorize the independent writing of briefs by the plaintiffs, and, when they assumed to prepare the brief, as alleged in their complaint, they went entirely outside of the written contract of employment, and therefore the complaint must necessarily have set forth some authorization so to do, as given to them by Charles Lantz, and also that their services were reasonably worth the sum of $100 per day.

The bill of particulars shows that the plaintiffs were engaged in the trial of the case of Broome v. Lantz in the superior court for just 6 days, for which a charge of $600 is made. For 3 days' work by the plaintiffs in preparing for trial, $300 is charged. For work done on 31 days in preparing a brief in behalf of the defendant in the case of Broome v. Lantz, $3,100 is charged. Then follows a charge of $300 for preparing a motion and affidavit for disqualification of the presiding judge. We do not need to run down the bill of particulars and call attention to the different items listed as charges for services as not coming within the specified employment to assist Charles Lantz in the trial of the case of Broome v. Lantz.

The record shows that the plaintiffs were paid the sum of $800 as and for their retainer fee, and also the further sum of $450, leaving only a balance of $150 covered by the contract in relation to the time spent in court while engaged in the trial of the cause; $100 for one day spent by Mr. Miller on September 17th at Ventura; $100 for time in Ventura by one of the plaintiffs not stated, on September 18th; $100 for consultation with the judge of the superior court of Ventura, on September 19th; and an additional $100 for time spent at Ventura on October 4th, on motion to disqualify the presiding judge.

There is nothing in the contract intimating, or which would reasonably convey to the thought of Charles Lantz, that the plaintiffs contemplated or were authorized to perform the additional work claimed by them, or that they were to receive the sum of $100 per day for alleged services to be performed in their offices. The intent and meaning of the contract as we read it leads only to the conclusion that the plaintiffs were to receive $100 per day in addition to the retainer's fee for the time that they were necessarily absent from their offices in assisting in the prosecution of the case.

As to the duty of attorneys to inform clients of their understanding of the contract, its meaning, etc., the following excerpt from the opinion of the Supreme Court in the case of Reynolds v. Sorosis Fruit Co., 133 Cal. 625, 66 P. 21, 23, is applicable, to wit: “The supreme court of Tennessee, in an exhaustive opinion reviews the whole subject in Planters' Bank v. Hornberger, 4 Cold. 531, and in the opinion says: ‘If a written contract was susceptible of two constructions, fairly and reasonably, and the one mind asserted to it upon the one construction, and the other upon the other construction, this would be no contract at all between the parties; and, where it is a contract between attorney and client, it would be the duty of the attorney to inform the client of the fact of its susceptibility of two constructions, and, having pointed out this liability of the contract, proceed to know, definitely and clearly, his client's views, before proceeding further. An attorney dealing with his client for further professional services, and the contract is reduced to writing, is bound to show, when he seeks to enforce it, that the latter fully understood it in the same sense, otherwise, it cannot be enforced. * * * We therefore declare that in all cases where the relation of attorney and client exists, and it is desired to make further professional engagements, that it is the duty of the attorney to have the contract, if there be one, clearly and definitely stated, and understood, not only in its language, but also in its spirit, legal consequences, and practical results.”’

That the overruling of the defendant's demurrer to the plaintiffs' complaint was prejudicial is clearly apparent, as it enabled the plaintiffs to obtain a judgment for several thousand dollars against the estate of Charles Lantz for services alleged to have been performed as upon a contract which did not exist, which necessarily excludes the application of section 4 1/2 of article 6 of the State Constitution. Several other objections to the plaintiffs' complaint are set forth in the defendant's demurrer, but need not be considered herein.

The appellants also urge that the court erred in rulings in relation to the defenses set up in their answer and cross–complaint. These, however, need not be considered, for the reason that what we have said herein is sufficient to dispose of this appeal, and the alleged subsequent errors of the court by which the defendants were precluded from introducing testimony, if such be the case, may not subsequently occur.

The judgment is reversed, with directions to the trial court to sustain the defendants' demurrer to the plaintiffs' amended complaint, with leave to amend, if so advised, within such reasonable time and conditions as the trial court may prescribe.

Mr. Justice PLUMMER delivered the opinion of the court.

We concur: PULLEN, P. J.; THOMPSON, J.