Brown v. Connolly

• Decision Date: 19 December 1969
• Citation: 83 Cal.Rptr. 158,2 Cal.App.3d 867
• Court: California Court of Appeals Court of Appeals
• Parties: Joseph A. BROWN, Plaintiff and Appellant, v. William J. CONNOLLY and Sunswept Trading Co., Inc., Defendants and Respondents. Civ. 26209.

Page 158

83 Cal.Rptr. 158

2 Cal.App.3d 867

Joseph A. BROWN, Plaintiff and Appellant, v. William J. CONNOLLY and Sunswept Trading Co., Inc., Defendants and Respondents.

Civ. 26209.

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

Dec. 19, 1969.

Joseph A. Brown, in pro. per.

Frederick P. Furth, Jon N. Richardson, Thomas J. Gundlach, San Francisco, for respondents.

ELKINGTON, Associate Justice.

Plaintiff Joseph A. Brown appeals from a judgment of dismissal after the sustaining of a demurrer to his second amended complaint without leave to amend. A purported appeal by him from the related non-appealable order sustaining the demurrer must be dismissed. (See Lavine v. Jessup, 48 Cal.2d 611, 614, 311 P.2d 8.)

Brown is an attorney at law. His second amended complaint alleged, as material here, that: (1) he had 'entered into a contract in writing with the defendants herein to act as an attorney at law for the defendants, William J. Connolly and the Sunswept Trading Co., Inc., to render legal services for them in an action pending in the Superior Court of the State of California, In and for the City and County of San Francisco, against the General Brewing Company, a California corporation, to recover the sum of $4,500,000; that the said agreement provided that the plaintiff should have and recover as an attorney's fee (contingent upon recovery) the sum of 25% Of $4,500,000'; (2) that after he had rendered substantial services under the contract; including filing an action and prosecuting it diligently, 'he was thereupon without right, without fault or cause, or any reason unjustly discharged by the defendants,' and (3) 'That by reason of all of the acts of the defendants herein plaintiff was deprived and prevented from earning his fee of 25% Of $4,500,000.' Judgment was prayed against defendants for the sum of $1,125,000 and costs of suit.

The second amended complaint contained no allegation, nor does Brown here make any contention that he could allege, that the defendants had recovered $4,500,000, or anything, on their claim against the General Brewing Company. Nor did the amended complaint contain allegations supporting, or prayer for, The reasonable value of services rendered in reliance upon the agreement.

Brown contended in the superior court, and here contends, that an attorney party to a percentage contingency fee contract, who, because of an unjustifiable discharge is prevented from further prosecution of his erstwhile client's claim, thereupon becomes entitled to the agreed percentage of the entire claim, even though no recovery is ever made thereon.

In Bartlett v. Odd Fellows Savings Bank, 79 Cal. 218, 221, 21 P. 743, 744, Bartlett, an attorney, had been employed by the bank to 'obtain by judgment or compromise the payment of a claim it had against William Sharon.' His compensation was to depend upon the contingency of recovery on the claim. Without sufficient cause the attorney was thereafter discharged, after which the bank did make some recovery on its claim. Bartlett sued to recover the amount to which he would have been entitled, had he been allowed to complete his agreed services and recovered the amount received by the bank. The defendant bank contended that the statute of limitations, running from the date of the contractual breach (Bartlett's discharge), rendered his claim unenforceable. The Supreme Court disagreed, stating (pp. 222--223, 21 P. p. 744):

'The plaintiff could not sue for damages resulting from his discharge, at the time of such discharge, because he could recover no money under his contract until the defendant should be paid some by William Sharon. The moment that money came to the hands of the defendant, and not until then, was the plaintiff entitled to his proportionate share of it. His cause of action could not accrue until the condition had happened; that is, the money had been paid by William Sharon to the defendant, by means of which alone the plaintiff would be entitled to anything. ( ) Had the plaintiff brought his action for damages for the non-compliance of the defendant with its contract, in discharging him without allowing him fully to perform the services he had undertaken, the defense would have been...