Dicker v. Bisno

Decision Date27 November 1957
Citation318 P.2d 159,155 Cal.App.2d 554
CourtCalifornia Court of Appeals Court of Appeals
PartiesNathan M. DICKER, Plaintiff and Respondent, v. Alexander BISNO, individually and doing business as Bisno & Bisno, Snader Telescriptions Sales, Inc., a corporation, Combined Television Pictures, Inc., a corporation, Defendants and Appellants. Civ. 22140.

Maurice Rose, Beverly Hills, for appellants.

Nathan M. Dicker and Milton Linder, Beverly Hills, for respondent.

FOURT, Justice.

This is an appeal from a judgment in favor of the plaintiff and against the defendants Alexander Bisno and Combined Television Pictures, Inc. (formerly known as Snader Telescriptions Sales, Inc.), for services rendered; and from a judgment in favor of the plaintiff and counterdefendant and against the defendant and counter-claimant Alexander Bisno upon a counter-claim.

The plaintiff Dicker is an attorney-at-law. For many years he represented Alexander Bisno in connection with Bisno's real estate transactions. Dicker was on a monthly retainer basis and was paid added amounts when extraordinary services were required. The retainer agreement was separate and apart from the services referred to in the present complaint and is not connected therewith. Alexander Bisno owned all of the stock of Snader Telescriptions Sales, Inc., which corporation changed its name to Combined Television Pictures, Inc., named as one of the appellants herein. In the fall of 1952, while appellants were engaged extensively in the television film production and distributing business they became involved in legal difficulties. Dicker rendered services to the appellants as an attorney in such matters. He received $2,500 on account from Snader Telescriptions Sales, Inc. The balance of the fees were to be paid to the plaintiff when all of the legal services had been completed. Plaintiff continued to represent the defendants in their television business activities until June 26, 1953, expending about 1,077 hours in connection therewith. The parties were unable to agree upon the reasonable value of the services rendered by the plaintiff to the defendants and on April 20, 1955, the plaintiff filed his complaint for legal services rendered 'in the television film production and distributing business, and including in such services proceedings before an arbitrator.' He alleged that the value of such services was $15,000, with a credit of $2,500 paid on account. One cause of action was stated against all defendants. The appellants answered the complaint by denying generally the allegations of the same, and alleging affirmatively that $7,500 had been paid by Alexander Bisno as full payment for any services of the plaintiff, and further alleged that the plaintiff was to look to the arbitration proceedings for further fees if any were due. By way of counter-claim, Alexander Bisno alleged that the plaintiff was indebted to him in the sum of $5,000 for money had and received. Thereafter an amended answer was filed wherein appellants changed the amount allegedly paid to the plaintiff from $7,500 to $2,500. The amount of the counter-claim was increased from $5,000 to $7,500. Two more amended answers were filed, neither, however, alleging any new affirmative defenses.

After a demand by the defendants for a bill of particulars, the plaintiff, on July 29, 1955, filed a document titled 'Bill of Particulars,' which set forth the services rendered to Alexander Bisno and Combined Television Pictures, Inc., in connection with the television matters. This document referred to certain arbitration proceedings and certain actions brought against Bisno in the state and federal courts. Further, it set forth that the services were rendered between October 20, 1952, and about July 15, 1953, and that such services were reasonably worth the sum of $15,000, upon which $2,500 had been paid on November 20, 1952. On September 26, 1955, plaintiff filed a supplemental bill of particulars in which he set forth all of the matters in which services were rendered for appellants. In this supplement the number of hours for each particular case and matter (and there were many) was set forth. It indicated that Dicker had spent 1,277 hours working for the defendants, of which 200 hours were on matters not connected with the television business. The reasonable value of the services was claimed to be $25 per hour, making a total of $26,925 on account of the television activities, with a credit of $2,500 paid by Snader Telescriptions Sales, Inc., leaving a balance due Dicker of $24,425.

The court found that the plaintiff had rendered legal services to Alexander Bisno at his special request and that the reasonable value of those services was $1,600, and concluded that interest thereon in the amount of $264 was also due; further that the plaintiff had rendered legal services to Snader Telescriptions Sales, Inc., later known as Combined Television Pictures, Inc., at its request, and the reasonable value of the services so rendered was $5,350, of which $2,500 had been paid on account thereof, and concluded that interest on the balance, in the amount of $473, was also due. Also, it was found that the plaintiff had rendered legal services to Alexander Bisno and Snader Telescriptions Sales, Inc., now known as Combined Television Pictures, Inc., jointly, at their request and that the reasonable value of such services was $3,200, and concluded that interest thereon in the amount of $530 was also due. In other words, the court found that the services of the plaintiff to the defendants jointly and severally were of the value of $10,150, of which $2,500 had been paid by Snader Telescriptions Sales, Inc., and that there remained due and owing to the plaintiff the sum of $7,650, plus interest upon the various amounts from the dates the said amounts were found to be due and owing. The court gave judgment to the plaintiff and ordered the liability split as follows: Alexander Bisno--$1,864; Combined Television Pictures, Inc.--$3,323; Alexander Bisno and Combined Television Pictures, Inc., jointly--$3,731.

Simply stated, the issues are (1) was it reversible error to file a supplemental bill of particulars in which a larger balance than that contained in the prayer of the complaint was indicated; (2) can the appellants for the first time on appeal raise an objection that there has been a misjoinder of causes of action or parties when such is not apparent on the face of the complaint; (3) is there any reason why a partly several and partly joint judgment should not be rendered against several defendants sued jointly in one cause of action where the question of misjoinder has not been raised in the trial court; (4) was it reversible error for the court to comment upon what it intended with reference to certain statements of the arbitrator; (5) may the statute of limitations be raised for the first time on appeal?

We are of the opinion that the answer in each instance is--No.

Code of Civil Procedure, section 580 provides that where an answer is filed the court may grant to the plaintiff any relief consistent with the case made by the complaint and embraced within the issue. The complaint in the present case was based upon the performance of legal services to the defendants in the television business. The plaintiff testified at length concerning the services rendered to appellants, either jointly or severally, in their television activities. There were no objections to such testimony upon the ground that it was outside the scope of the issues raised by the complaint. Plaintiff also testified, without objection, as to the value of the services rendered, which testimony was to the effect that the value of the services exceeded the amounts set forth in the prayer in the complaint.

In a contested case the plaintiff may secure relief greater than that prayed for. Martin v. Pacific Southwest Royalties, 41 Cal.App.2d 161, 172, 106 P.2d 443; Johnson v. Polhemus, 99 Cal. 240, 244, 33 P. 908; Potter-Huffman Land & Livestock Co. v. Witcher, 48 Cal.App. 93, 96, 191 P. 725; Von Schrader v. Milton, 96 Cal.App. 192, 198, 273 P. 1074; Nathan v. Dierssen, 164 Cal. 607, 611, 130 P. 12.

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5 cases
  • House v. Moomaw
    • United States
    • Ohio Court of Appeals
    • March 20, 1964
    ...in it.' Other cases following this principle are Neff v. Western Cooperative Hatcheries (C.C.A. 10), 241 F.2d 357; Dicker v. Bisno, 155 Cal.App.2d 554, 318 P.2d 159; Anderson v. Cummings, 81 Idaho 327, 340 P.2d 1111; Farmer v. Arabian American Oil Co. (C.C.A. 2), 285 F.2d In the case before......
  • O'Neil v. Spillane
    • United States
    • California Court of Appeals Court of Appeals
    • February 7, 1975
    ...be specially pleaded in the answer) or is waived (Hall v. Chamberlain (1948) 31 Cal.2d 673, 679, 192 P.2d 759; Dicker v. Bisno (1957) 155 Cal.App.2d 554, 560, 318 P.2d 159; 3 Witkin, Cal.Procedure (2d ed.), § 939, p. 2518). Here, the defense of the statute of limitations was not raised eith......
  • Golden Hill Neighborhood Ass'n, Inc. v. City of San Diego
    • United States
    • California Court of Appeals Court of Appeals
    • September 22, 2011
    ...1261, 1276, 51 Cal.Rptr.3d 195 [failure to pray for the proper form of relief is not fatal to a complaint]; Dicker v. Bisno (1957) 155 Cal.App.2d 554, 558, 318 P.2d 159 [plaintiff in a contested case may secure greater relief than that requested in prayer].) The Association's prayer for man......
  • Burton v. Santa Barbara Nat. Bank
    • United States
    • California Court of Appeals Court of Appeals
    • December 21, 1966
    ...43 P. 391; Ames v. Bell, 5 Cal.App. 1, 4, 89 P. 619; Gilmore v. Hill, 152 Cal.App.2d 881, 882--883, 313 P.2d 898; Dicker v. Bisno, 155 Cal.App.2d 554, 558, 318 P.2d 159), but the statute sets up a procedure which must be followed; a bill or copy of the account must be delivered to defendant......
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