Crestview Cemetery Ass'n v. Dieden

• Decision Date: 27 October 1960
• Court: California Supreme Court
• Parties: , 356 P.2d 171 CRESTVIEW CEMETERY ASSOCIATION (a Nonprofit Corporation), Plaintiff and Appellant, v. Leonard DIEDEN, Respondent; Chauncey McKeever, Cross-Defendant and Appellant. S. F. 20451.

Page 427

8 Cal.Rptr. 427

54 Cal.2d 744, 356 P.2d 171

CRESTVIEW CEMETERY ASSOCIATION (a Nonprofit Corporation), Plaintiff and Appellant, v. Leonard DIEDEN, Respondent Chauncey McKeever, Cross-Defendant and Appellant.

S. F. 20451.

Supreme Court of California, In Bank.

Oct. 27, 1960.

Rehearing Denied Nov. 23, 1960.

Livingston & Borregard, Lawrence Livingston and Paul C. Maier, San Francisco, for appellants.

Robert C. Burnstein and Fred F. Cooper, Oakland, for respondent.

PETERS, Justice.

The sole question presented on this appeal is whether the trial court correctly interpreted the contract admittedly existing between the parties. We are of the opinion that, under the facts here existing, the question of interpretation was primarily one of fact, and that all of the findings of the trial court on this issue are amply supported by the evidence. For that reason, we are of the opinion that the judgment should be affirmed.

The parties here involved are the plaintiff and one of the appellants, the Crestview Cemetery Association, a nonprofit corporation that owned some land in Alameda County that it desired to develop as a cemetery; the cross-defendant and appellant Chauncey McKeever, an attorney at law and an officer of Crestview, who, in negotiating the contract here in dispute, admittedly acted for Crestview and for himself; and the defendant, cross-complainant and respondent, Leonard Dieden, also an attorney at law, and the other party to the contract in dispute.

The record shows that, in 1956, Crestview owned some real property in an unincorporated area of Alameda County near the city of Hayward that it desired to develop as a cemetery. This was difficult under the existing county zoning laws, which Crestview and McKeever found to be confusing. McKeever, on behalf of himself and Crestview, employed attorney Marlin Haley to secure the necessary authority to conduct a cemetery on the premises. Haley and McKeever apparently concluded that the desired purpose could best be attained if the land in question were first annexed by the city of Hayward. Whether McKeever and Haley sponsored the annexation we do not know, but we do know that the Crestview land was annexed to the city as part of a much larger tract. In the city ordinance the Crestview land was placed in a residential zone. Haley attempted to secure a variance, so as to permit the land to be used for cemetery purposes. He was unsuccessful. He informed McKeever that competing cemetery interests had prevented him from accomplishing the desired purpose, confessed his inability to secure the variance, and asked to withdraw from his employment. McKeever agreed to the withdrawal, and paid Haley for his services.

In April of 1956 Leonard Dieden was recommended to McKeever by Haley as an attorney who might be able to secure the desired result. McKeever talked to Dieden by telephone and arranged to meet him in Haley's office in Hayward to discuss the prospective employment. This meeting was held on April 23, 1956, and was attended by McKeever, Dieden and Haley. As a result of this meeting, and several subsequent telephone conversations, appellants and Dieden entered into an oral contract, the terms of which were finally agreed upon on May 14, 1956, whereby appellants agreed to pay Dieden $7,500 on condition Dieden perform certain acts. The nature, purpose and terms of this contract are the key problems presented on this appeal. So far as the terms of that contract related to what Dieden was to do to earn his fee, they were fixed at the meeting of April 23, 1956. The subsequent conversations all related to the nature and amount of the fee.

All three of the participants in the conference of April 23rd testified as to what was then said and agreed upon. They generally agree upon the words that were then used but differ materially as to what those words meant, and were intended to mean. All agree that McKeever stated that he wanted to employ Dieden under a contingent contract and that he agreed to pay him $7,500 if a certain result was secured. It is the theory of appellants that the result desired was that Dieden was to take whatever steps he thought advisable to make the land available for cemetery purposes, and that the fee was not to be payable unless or until the land was made so available. It is the contention of Dieden, and the trial court so found, that he was employed to secure a rezoning of the land from residential to commercial, and that he earned his fee when he secured passage of such an ordinance.

Dieden testified that McKeever asked him what he would charge to make the land available for cemetery purposes. He replied his fee would be $10,000, $3,500 payable in advance. McKeever demurred, stating that any fee would have to be contingent on success. As a result of several later telephone conversations the figure of $7,500 was agreed upon as the contingent fee. It was agreed that Dieden should have three months to try and secure the desired result.

Haley testified at some length about what was said at the conference. He stated that McKeever told Dieden that he wanted to establish a cemetery on his property and asked Dieden if he was willing to accept employment to secure whatever was necessary from the city to accomplish that result. McKeever then stated that whether Dieden was to try and secure a variance permit or a rezoning was up to Dieden. Everyone at the conference, however, knew that Haley had been unable to secure a variance. McKeever told Dieden that '(t)he contingency was based upon Mr. Dieden being able to secure whatever rezoning or permit was necessary from the City of Hayward to enable them to establish a cemetery on the property.' Haley indicated that it was his understanding that Dieden was to obtain either rezoning or a permit or both from the city so as to enable the McKeever group to establish a cemetery on the property. Dieden replied that if the property was rezoned a permit would probably not be required.

McKeever generally agreed with this testimony.

It is the theory of appellants that Dieden was employed for the purpose of making the land available for cemetery purposes, or at least was not to be paid unless he secured a rezoning ordinance that became operative. It was the theory of Dieden that he was engaged to secure a rezoning of the land from residential to commercial, and that he performed this task.

After the parties agreed upon the contingent fee on May 14, 1956, Dieden started to work. He prepared a letter to the Hayward Planning Commission, which was executed by McKeever, requesting a rezoning of the property. Dieden then prepared and filed an application for rezoning and actively argued in favor of the application at several hearings at which vigorous opposition to his position developed. On July 24, 1956, the city council passed an ordinance by which the Crestview lands were rezoned from 'Zone 1 Residential Low Density' to 'Zone 3 Business and Commercial.' At this meeting of the council McKeever and Dieden were present. At that time neither knew of the provisions of the law applicable to the referendum as applied to city ordinances. The meeting was well attended, and several arguments for and against the rezoning were made. After the ordinance had passed by a vote of four to three a recess was called. At that time a woman who had opposed the rezoning ordinance told McKeever and Dieden that her group intended to continue to attack the ordinance by referendum. Dieden then found out from the city attorney the percentage of signatures necessary to validate a referendum and reported this to McKeever. McKeever congratulated Dieden on having completed his job so successfully and Dieden said 'There's your permit. Send me a check.' This McKeever promised to do. Three days later, on July 27, 1956, and after McKeever knew that the referendum was pending, he sent Dieden a check for $5,000. He stated in the accompanying letter that this $5,000 was 'on account of your legal fee in the amount of $7,500.00 for services in connection with the adoption of a rezoning ordinance * * * on behalf of Crestview Cemetery Association.

'I will have the balance for you shortly. One of my associates is out of town.

'May I take this opportunity to compliment you on a very fine piece of work. Your comprehensive coverage of a delicate and difficult situation and your masterly presentation of the facts deserve great commendation, particularly in view of the type of opposition which was arrayed against you.'

Dieden thereafter made several telephone calls to McKeever requesting the balance of his fee and McKeever on each occasion promised to pay. During one of these conversations Dieden told McKeever about how the referendum was progressing. McKeever at these times never contended that the contracted for services had not been performed but to the contrary always promised to pay the $2,500 balance owed as soon as he could contact his associates.

The referendum qualified within the time prescribed by law by the filing of the requisite number of signatures. This gave the city council the election of calling a special election or of repealing the rezoning ordinance. The council selected the latter procedure and repealed the ordinance on September 11, 1956. McKeever then refused to pay the balance claimed, and demanded a refund of the $5,000 paid on the ground that Dieden had not fully performed the contract.

The parties being unable to agree, Crestview brought this action against Dieden for the $5,000 paid to him alleging a cause of action on a common count for money had and received. Dieden, by way of answer, filed a general denial and cross-complained against Crestview and McKeever for the $2,500 still claimed to be due him. The cross-complaint alleges that Dieden performed legal services at appellants' special instance and request 'consisting of preparing, drawing and engrossing various instruments in writing and in...