170 PACIFIC REPORTER proval, and consent of a majority of the direc- 143-CONTRACTS AS TO COMPENSATION-VALIDITY. The rule that, where the relation of attorney and client already exists when a contract is made respecting the attorney's fees, he is precluded from recovering more than a reasonable sum for his services without regard to the attempted fixing of their value by the agreement, is not a rule of universal application, and only applies where there are special reasons for its application, as where the written contract provides for greater compensation than was expressly or impliedly agreed upon prior to the existence of the confidential relation, or where special relations of confidence exist, or where the client had no other independent legal adviser, or where there was some failure on the part of the attorney to make full disclosure to the client as to the extent of the services required. 4. TRIAL 296(11)-INSTRUCTIONS-CURE BY OTHER INSTRUCTIONS. In an attorney's action for services, an instruction that, if a written contract was made fixing the amount of compensation, the verdict should be for the full sum provided for in such contract, without considering or going into the matter whether the services were reasonably worth such sum, was not misleading or sufficiently prejudicial to require a reversal, though such contract was made after the relation of attorney and client had commenced, where the court gave every instruction requested by defendant, and in so doing fully and repeatedly instructed the jury that the utmost limit of plaintiff's recovery was the reasonable value of his services. 5. ATTORNEY AND CLIENT 165 FOR COMPENSATION-PLEADING AND PROOF: ACTIONS Where an attorney was discharged without cause, and before the full measure of the services, contemplated by his written agreement, had been performed, he was not, required to allege or prove the reasonable value of his services which he was not permitted to perform, but was entitled to count upon the contract. 8. APPEAL AND ERROR 1040(10)—HARMLESS ERROR-OVERRULING DEMURRER. In an attorney's action for services, the uncertainties in the complaint with respect to the specific services performed did not injure defendant where, at some time during the pendency of the action, defendant was furnished a bill of particulars setting forth specifically the services upon which the claim for compensation was based, and the items of such bill were made the subject of exhaustive examination during the trial, and hence the overruling of a demurrer to the complaint was not ground for reversal. (Cal, judgment in favor of plaintiff for the sum of RICHARDS, J. This is an appeal from a $39,000 and costs, and from an order denying defendant's motion for a new trial. The action was instituted for the recovery paid on account, alleged to be due from the of the sum of $40,000, less the sum of $1,000 defendant to the plaintiff as counsel fees. The complaint is in two counts, one upon an express contract for the payment of the above-named sum; the other a count for the recovery of said sum as the reasonable value of the plaintiff's professional services. answer of the defendant denies the existence The of any express contract for the employment of plaintiff to render any professional serv ices whatever; and also denies that any such services which the plaintiff may have rendered to the defendant were of the reasonable value of $40,000 or any other sum whatthe plaintiff may have rendered to the deever, and alleged that for any services which ant also pleads the bar of the statute of limfendant he has been fully paid. The defenditations to the action. ed by the defendant. The trial before such The cause was tried before a jury demandjury occupied nine days, at the conclusion of which the jury unanimously rendered a verdict in plaintiff's favor for the full sum demanded in his complaint. moved for a new trial upon the grounds of The defendant insufficiency of the evidence to justify the verdict; that said verdict was against law; and also upon the ground of errors of law the bill of exceptions. The entire record of Occurring at the trial and fully specified in the trial is before us, and is very voluminous. cital may be necessary for its decision upon The facts of the case, in so far as their reappeal, are as follows: The defendant is a of the state of Califorina, with a capitalizamining corporation organized under the laws tion of $1,000,000, and owning or claiming to own locations embracing 41,200 acres of mineral lands in the counties of San Bernardino and Inyo, in said state, containing deposits of potash, soda, and trona of vast and variously estimated value. gan its operations for the development of these properties in the year 1908, and in the The corporation be month of August of that year entered into opment Company an English corporation, for an agreement with the Foreign Mines DevelAction by Robert H. Countryman against capital for such development, giving its mortthe purpose of having provided the necessary the California Trona Company. From a judg-gage upon the properties to the latter corpoment for plaintiff and an order denying a ration to secure such advances and expendinew trial, defendant appeals. Affirmed, Appeal from Superior Court, Alameda County; T. W. Harris, Judge. Charles W. Slack, Chauncey S. Goodrich, as under the agreement it was entitled to retures as it might have and also such bonuses and Perry Evans, all of San Francisco, for ceive. After the development work had proappellant. Chapman & Trefethen, of Oak- ceeded for a little more than a year the land, and Wm. P. Hubbard and R. H. Coun- mortgagee gave notice of its election to contryman, both of San Francisco, for respond-sider all moneys secured by said mortgage to ent. be due and payable, and of its intention in all Key-Numbered Digests and proceed to a sale of the property under the terms of the mortgage. Thereupon the mortgagor, the appellant herein, commenced an action in the superior court of Alameda county to enjoin the proposed sale, and secured a temporary injunction to that effect; whereupon the defendant therein, the Foreign Mines Development Company, filed its answer and cross-complaint, praying for the foreclosure of its said mortgage, and also filed its application for the transfer of the cause to the federal courts. This transfer being accomplished, the suit was referred to the master in chancery to take testimony therein. In the meantime and during the pendency of said action the California Trona Company granted to one E. H. Merrill an option to purchase all of its said properties for the sum of $1,000,000. At that time the plaintiff in this action was the attorney for said E. H. Merrill, while the defendant herein had been theretofore and continued to be represented by one J. Harwood. The existence of the foregoing option in the said Merrill, together with the various involvements of the defendant herein accruing out of or coincident with its financial and legal difficulties with its mortgagee, brought the said E. H. being elected president of the corporation, and Mr. Dolbeer vice president and general manager. A few days thereafter Mr. Dolbeer and director Philips visited the plaintiff's office in said city for the purpose of making an agreement covering his compensation for his past and future services, at which time the plaintiff said to Dolbeer and Philips that his fee would be $40,000 for his past services and his future services in the foreclosure suit. After some discussion a written contract was executed on behalf of the California Trona Company by said Dolbeer as its manager, which provides as follows: "That for and in consideration of the legal services heretofore rendered by said Countrythe legal services to be rendered by said Counman to said California Trona Company, and for tryman as such attorney at law, in the suit pending before the United States Circuit Court in and for the Northern District of California to foreclose the mortgage of the Foreign Mines Development Company on the property of said California Trona Company in San Bernardino county, California, there shall be paid to said Countryman the sum of forty thousand ($40,000) dollars in full settlement and discharge and satisfaction of all of said legal services. "In witness whereof the parties hereto have executed these presents the day and year herein first above written. "California Trona Company, "By C. E. Dolbeer, Mgr. "R. H. Countryman." There is no evidence that Mr. Dolbeer was ever formally authorized by any resolution or other formal action of the board of di or execute this contract on its behalf, but there was evidence presented on the plaintiff's behalf tending to show that the subject and substance of this contract was made the subject of discussion and approval in various conversations between the plaintiff and a majority of the members of the defendant's board of directors, and was also discussed among themselves and with other persons. On January 17, 1911, at a general meeting of the stockholders and directors of the defendant, a resolution was offered by manager Dolbeer, and seconded by director Bartholomew, providing for the borrowing of the sum of $1,000 from Colonel Merrill and the giving of the corporate note therefor. The said resolution, as appears from the minutes of said meeting, certified to by its secretary, contained the following words: Merrill and his counsel into the close relations of a common interest with the defendant herein in an effort to extricate the properties of the defendant from its several imminent dangers of being lost to it. The plaintiff herein and the counsel for the defendant herein were thus brought into asso-rectors of the defendant herein to enter into ciation for the protection of this common interest of their clients, in the course of which the plaintiff co-operated with the defendant's counsel in the preparation of certain affidavits by the president and directors of said corporation for use in the course of their pending suit in the federal court, and also participated in certain hearings therein. About this time also some trouble seemed impending with jumpers upon the property, in the course of which the plaintiff was called into consultation with Mr. Dolbeer, the general manager and one of the directors of the defendant, and performed some services in that connection and also in the way of advising and preparing relocations of certain of the defendant's claims. While these matters were impending the plaintiff in the month of September, 1910, received a telegram from Mr. Dolbeer requesting him to be formally associated with Mr. Harwood in the pending action in the federal court, and he thereafter appeared as representing the There is evidence both ways as to whether plaintiff (this defendant) therein, and also the above-quoted clause was a part of said acted as its counsel in the various other dif- resolution at the time of its adoption, and ficulties in which it either was or was likely there is also much evidence pro and con with to become involved. In the month of Decem-reference to the several conversations with ber, 1910, the defendant held a corporate and among the directors of the corporation meeting in the city of San Francisco, at with reference to the existence and terms of which its board of directors was filled out so the plaintiff's written agreement. During the as to consist of directors Boyes, Doibeer, Si-year 1911 the defendant was passing through mon, Philips, and Bartholomew, Dr. Boyes a series of internal convulsions arising out partial payment to Robert H. Countryman on "Said money is for the purpose of making a account of his agreement for his legal services rendered to this company." 170 PACIFIC REPORTER (Cal, settled as a matter of law that the agreement of a corporation entered into by its manager without authority sufficiently ample to enable him to execute the same may be approv of the efforts of contending factions among its stockholders to obtain control of it, the faction seeking to overthrow its existing board of directors being led by one Guy L. Wilkinson, who was counsel for the Foreigned and ratified so as to become binding upon Mines Development Company in its litigation with the defendant. This faction at length succeeded in accomplishing its object in the month of May of that year, and, after electing a board of directors to its liking, proceeded to notify the plaintiff herein and others who had been acting as counsel for the defendant that their services would be no longer required. The respondent herein admits receiving such a notice on October 4, 1911. This action was commenced on May 17, 1913. such corporation through the knowledge, ap proval, and consent of a majority of the membership of the board of directors acting individually and informally, particularly where, as in this case, the plaintiff has been permitted to continue in the open and active capacity and service of an attorney for the corporation without objection or inquiry as to the existence or terms of his engagement so to do. Brown v. Crown Gold Milling Co., 150 Cal. 376, 89 Pac. 86; Scott v. Superior Sunset Oil Co., 144 Cal. 140, 77 Pac. 817; 896; Reardon v. Richmond Land Co., 21 Cal. As to the first contention of the appellant Gribble v. Columbus Brewing Co., 100 Cal. with respect to the insufficiency of the evi-67, 34 Pac. 527; Goodwin v. Central Broaddence as to the amount and value of the way Building Co., 21 Cal. App. 376, 131 Pac. services of the plaintiff to the defendant to justify the general verdict of the jury rendered herein, and also as to the creation and ratification of the aforesaid written agreement, we are of the opinion, after a careful review of the entire record, and a consider-with respect to the plaintiff's first cause of [3] The second contention of the appellant ation of the extended comments of counsel thereon, that the evidence in respect of these matters is in such general and substantial conflict that we would not be justified in any attempt to review or overthrow the unanimous verdict of the jury in favor of the plaintiff upon these contested issues; nor to attempt to review or reverse the order of the trial judge who, after hearing all of the evidence which was presented to the jury and all of the objections and arguments urged by the defendant against its sufficiency, denied the defendant's motion for a new trial. action is that, even conceding the due execu tion or subsequent ratification of the plaintiff's written contract, he would not be entitled to recover the sum specified on its face as the agreed amount of his compensation, but at most only the reasonable value of his services rendered thereunder; and the appellant urges in support of this contention that since at the time of the execution of said written agreement the relation of attorney and client had already been created between the plaintiff and defendant the law [1, 2] The defendant further contends that torney, standing already in a confidential regoverning such relation requires that the atthe plaintiff herein was not entitled to recov-lation to his client, is bound to the exercise er upon his first cause of action for two of the utmost good faith in the matter of main reasons, the first of which is that the making a formal contract for his fees, and written agreement upon which the plaintiff hence would be precluded from the recovpredicates his first count or cause of action ery of more than a reasonable sum for any was not shown to have been executed on be- services rendered or to be rendered under half of the corporation defendant by any one and by virtue of his written agreement, withhaving authority so to do. It is conceded by out regard to its attempted fixation of their the respondent that Mr. Dolbeer, the general value. manager of the defendant, would not have been authorized by the scope of his powers as such to bind the corporation by such an agreement; but the respondent maintains that there is sufficient evidence in the record to show that the agreement was after its execution discussed with and made known to and approved by a majority if not all of the directors of said corporation, and that with such knowledge and approval the plaintiff was permitted to proceed with the performance of the services specified therein under such circumstances and for such length of time as to constitute a ratification of the execution and terms of such agreement. Upon these matters of fact the evidence, as we have seen, is in substantial conflict, and hence the finding of the jury in plaintiff's favor thereon will not be disturbed. It is well tention to say that, conceding the law to be It would be a sufficient answer to this conthere is sufficient evidence in the record beas counsel for the appellant asserts it to be, fore us to sustain a finding of the jury that the amount of the plaintiff's claim was the reasonable value of his services, were it not for the fact that, as the appellant points out, the court in its instruction numbered 2 to the jury seems to lay down a different rule. In that instruction the court stated to the jury that if they should find from the evidence that there was a written contract, whereby the defendant corporation agreed to pay the plaintiff the sum of $40,000, and if they should also find that the plaintiff fully performed all of the services he was to perform under said written contract, then they need not consider or go into the matter as to of services which he was not permitted to perform, but would be entitled to count upon his contract; and in this connection we think the trial court correctly instructed the jury that if they should find from the evidence that the plaintiff had been discharged without cause, and thus prevented from the full entitled to recover the full amount agreed upon by its terms. Without undertaking herein to review the entire body of the instructions of the trial court in this case, or to consider in detail the several other criticisms which the appellant aims at them, we will dispose of this branch of the case with our conclusion that, taken as a whole, the instructions given by the court to the jury were in a remarkable degree full, fair, lucid, and free from confusion, and that we are entirely satisfied that the jury were in no way misled thereby to the appellant's injury. whether the plaintiff's services were reason-sufficiently prejudicial to require a reversal ably worth said or any other sum, but their of the case. verdict should be for the full sum provided [5] In addition to this, it may be stated for in said contract less whatever sums had that it was a conceded fact in the case that been paid on account thereof. It is true that the plaintiff was discharged by the defendthe trial court gave this instruction, and it ant without cause and before the full measis also true that it is in seeming variance ure of the services contemplated by the writwith the equitable rule governing the rela- ten agreement had been performed. Under tions of attorney and client invoked by the these conditions plaintiff would not be reappellant as above set forth; but an exam-quired to allege or prove the reasonable value ination of the cases cited by the appellant's counsel in support of this rule satisfies our minds that the equitable principle it embodies, however sound in the abstract, is not to be given universal application to every agreement made between attorney and client while the relation exists, but only to those agreements where the circumstances under performance of his agreement, he would be which they are entered into disclose some special reason for its application-as where the written contract provides for greater compensation than was either expressly or impliedly agreed upon prior to the existence of the confidential relation (4 Cyc. 961); or where special relations of confidence exist; or where the client had no other independent legal adviser; or where there was some failure on the part of the attorney to make full disclosure to the client as to the extent of the services required. None of these special conditions requiring an equitable scrutiny of the written contract between plaintiff and defendant herein exists in this case. The latter was already possessed of other counsel as of a time prior to the inception of the plaintiff's services, and was thus in a position to be fully advised as to their past as well as prospective value. Both of the parties to the contract understood what legal services plaintiff had already performed, and what further services he was to perform in the particular action to which the contract referred. The parties stood in no special confidential relation to each other which would give rise to either opportunity or imputation of any undue influence attend-ices upon which his claim for compensation ing the making of the written agreement as to the amount of plaintiff's fees. It may well, therefore, be questioned whether the abstract principle for which the appellant contends is to be given application to the facts of the case at bar so as to relieve the appellant from compliance with the precise terms of its written contract. [6] The appellant makes the further contention that its demurrer to the plaintiff's complaint upon the ground of uncertainty should have been sustained. There are some uncertainties in the allegations of both counts of said complaint with respect to the specific services performed by the plaintiff which might well have been removed by a further amendment to his complaint; but the record shows that at some time during the pendency of the action the defendant was furnished by plaintiff with a bill of particulars which set forth specifically the serv was based, and which in that respect eked out the uncertainties in his pleading. The items of this bill of particulars were made the subject of exhaustive examination during the trial; and there can be no contention that the defendant was in any way injured by the alleged uncertainties in the plaintiff's original pleading. This being so, the objection which is now urged thereto cannot be relied upon for a reversal of this case. [4] But, aside from these considerations, we are satisfied from an examination of the whole body of the trial court's instructions that the jury could not have been misled by There are a large number of other excepany defect in the foregoing instruction, for tions and objections to the regularity of the the reason that the court gave every instruc- trial of this cause which it would be untion requested by the defendant, and in so profitable, not to say impossible, to review doing fully and repeatedly instructed the in detail. It is sufficient to say that in our jury that the utmost limit of the plaintiff's opinion none of these go to the substantial recovery in this action was the reasonable merits of this controversy, or furnish a sufvalue of his services. In the light of these ficient reason for the reversal of this cause repeated admonitions to the jury, we cannot upon appeal. The case was fully, fairly, and say that the alleged defect in the instructionably presented before an impartial judge and which the appellant especially assails was before a jury called at the defendant's own 170 P.-68 170 PACIFIC REPORTER suggestion, and against the fairness of which We concur: LENNON, P. J.; KERRI- (35 Cal. App. 681) LONDON & LANCASHIRE INDEMNITY CO. et al. v. INDUSTRIAL ACCIDENT COMMISSION et al. (Civ. 2350.) (District Court of Appeal, First District, fornia. Dec. 27, 1917. Rehearing Denied by Supreme Court Feb. 25, 1918.) MASTER AND SERVANT 375 (1)—WORKMEN's COMPENSATION ACT-INJURY ON HIGHWAY -"TRAVELING EMPLOYÉ"-"EMPLOYÉ." An employé of an iron works, whose duties were to assist in the manufacture and assembling of machinery, and who, whenever the works secured a contract for the installation of machinery in any particular place, was required to go to that place for such purpose, was a "traveling employé," so that he was entitled to compensation under Workmen's Compensation Act (St. 1913, p. 279), for injuries sustained on the public highway while traveling to a town in course of his employment in an automobile. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Employé.] (Cal. son in another machine, directing the journey and showing them the road. While on the way the automobile in which Summers was riding turned over and he sustained the injuries for which he seeks compensation. The Industrial Accident Commission allowed him compensation upon a showing of the foregoing facts. The petitioner herein seeks to have reviewed the order of the commission in that regard, basing its application upon the contenthat the injury did not arise out of the aption that the undisputed evidence showed plicant's employment, for the reason that Cali-exposed was one of those common risks to the risk of injury to which the applicant was which the public generally are exposed, and streets or highways in any sort of vehicle to which every employé who travels the going to or returning from his work is exposed. On behalf of the respondent herein it is conceded that the general rule governing ordinary cases arising under the Workmen's Compensation Act is that for which the petitioner herein contends; but the respondent herein argues, we think convincingly, that the facts of this case bring it within the exceptions to the general rule. The exceptional cases are those wherein the employment itself is one in which the employé is required to travel from place to place at the risks of such travel are directly incident to will of the employer, and hence where the the employment itself, and hence wherein the one arising out of the employment, and accident occurring by reason of such risk is therefore a proper subject of compensation under the Employers' Liability Act. Proceedings for compensation under the Workmen's Compensation Act by S. M. Summers, the employé. awarded by the Industrial Accident CommisCompensation was sion, and the London & Lancashire Indemnity Company, etc., the insurer, and another petition for certiorari to review the order of the Commission. Writ denied. Redman & Alexander, of San Francisco, for petitioners. Chris. M. Bradley, of San Francisco, for respondents. The evidence in this case shows that the ture of a traveling employment. It differed employment of the employé was in the nafrom the employment in the case of Hopkins v. Michigan Sugar Co., 184 Mich. 87, 150 PER CURIAM. N. W. 325, L. R. A. 1916A, 310-upon which The facts of this proceeding are these: The respondent S. M. respect that in that case the injured employé the petitioner herein strongly relies-in the Summers was employed by the California was chief engineer of his employer superIron Works as a millwright. were to assist in the manufacture and as- chinery in six of its plants located in differHis duties vising the installation and operation of masembling of machinery. Whenever his em- ent cities, and that his injuries occurred ployer secured a contract for the installation while returning from a tour of inspection of of machinery in any particular place Summers was required to go to that place for was denied compensation; and also in the one of these plants, and for which injury he that purpose. He thus traveled from place respect that the several places of his emto place for his employer, and was allowed ployment and service were at all times depay for the time consumed in making these fined-the fact that there were several of journeys, and also was allowed a sum to pay them instead of one not preventing the aphis traveling expenses. In going and com- plication of the general rule; while on the ing he was allowed to use any means of other hand, in the case at bar the particular conveyance he desired. At the time of the destination to which the employé should go injuries for which he sought compensation he from time to time in the course of his duty had been directed to go to the town of Al- was not defined in advance, but was the subhambra, and undertook to make the journey ject of selection and direction from time to in an automobile belonging to his son. Dur-time by the employer to an extent which ing the trip Mr. Stamm, the manager of the rendered the travel of the employé to such employer, preceded Mr. Summers and his places a part of the employment itself suffi |