ELLEN M. FERNANDEZ, formerly Ellen M. Brodies, Respondent, v. JAMES ALVA WATT, Defendant, Cross-Complainant, and Appellant; and WATSONVILLE REALTY COMPANY (a Corporation), Appellant, 26 Cal. App. 86

THE COURT. This action comes to this court upon an order of transfer from the supreme court. The plaintiff’s complaint alleges substantially that she was the owner of thirty-six shares of the capital stock of the Watsonville Realty Company (a corporation), which, upon March 24, 1905, and ever since were held in trust for her by the defendant, James Alva Watt, an attorney at law.

Watt, at the time of the commencement of the action, so the complaint alleged, claimed the right to hold the stock in controversy as security for the payment of an indebtedness due him for professional services alleged to have been rendered to the plaintiff. The plaintiff prayed for an accounting of the dividends, paid on the stock in controversy, and alleged to have been retained by the defendant, Watt, and for a judgment directing the delivery of the stock to her by the defendant “upon the payment to him of such sum of money as may be determined by the court . . . to be due and payable” to him.

The defendant Watt, in his answer and cross-complaint, admitted his possession of the stock, and admitted the plaintiff’s title thereto, but alleged a prior agreement with the plaintiff whereby he was employed as her attorney, under the terms of which he had rendered her professional services of the reasonable value of $1621.60, in several transactions which culminated in prolonged litigation, and then pleaded the pledge of the stock to him by the plaintiff as security for the payment of the sums alleged to be due him for professional services, together with advancements and disbursements made by him during the litigation, in which the plaintiff became involved, in the sum of $292.10.

The defendant prayed for a judgment for the sums claimed to be due him, and that, after crediting the amount of dividends on the stock admitted to have been received and retained by him, a decree be made foreclosing his lien upon the stock and directing a sale thereof to satisfy his claim.

The trial court found that the defendant received and held the stock in trust for the plaintiff; that he had collected the sum of one thousand four hundred and four dollars as dividends thereon; that he had rendered professional services to the plaintiff which were reasonably worth only the sum of four hundred dollars; and that he in the rendition of such services had expended in the plaintiff’s behalf only the sum of one hundred dollars.

Thereupon judgment was entered in favor of the plaintiff for the recovery of the stock and the sum of nine hundred and four dollars, which sum represented the difference between the dividends due to the plaintiff and collected and retained by the defendant on the stock and the sum found to be due him for professional services and advances made.

Judgment was also rendered in favor of the plaintiff and against the defendant Watsonville Realty Company in the sum of one hundred and forty-four dollars for a dividend declared to be due and payable on the stock which the.court found had not been paid to plaintiff by the corporation defendant nor collected by the defendant Watt.

The judgment against the corporation defendant is not assailed; but it is insisted upon behalf of the defendant Watt that the judgment as to him should be reversed, because of errors of law occurring during the trial, and the alleged insufficiency of the evidence to support the findings of the trial court. Incidentally, it is insisted that certain findings are conflicting and contradictory, and that therefore the judgment should be reversed.

With reference to the last point, it may be conceded that the findings referred to, which relate to the plaintiff’s ownership of the stock, are in a measure conflicting, but inasmuch as the plaintiff’s ownership of the stock was an admitted fact in the case, it is obvious that the claimed conflicting findings were wholly unnecessary, and therefore immaterial to the issues involved in the case. It needs no citation of authority to support the proposition that findings upon admitted facts are not required, and that a judgment will not be disturbed because of a real or apparent conflict in such findings.

The argument made in support of the contention that the material findings in favor of the plaintiff upon the subject of the value of the services rendered by the defendant are not supported by the evidence is devoted chiefly to a discussion of the credibility of the plaintiff as a witness in her own behalf, and the weight of the evidence generally adduced upon this phase of the case.

The credibility of the witness and the weight of the entire evidence were matters to be determined by the lower court in the first instance upon the trial of the case, and finally upon the hearing and determination of a motion for a new trial. Our examination of the record convinces us that there is some evidence sufficient to sustain the findings complained of, and that the evidence as a whole is in substantial conflict in so far as it relates to the issue of the value of the defendant’s services.

This being so, the judgment cannot, under the well-settled and gfenerally well-understood rule, be disturbed by this court upon the ground that the evidence is not sufficient to support the findings and judgment.

If our examination of the record had convinced us that the findings complained of were not as a matter of law supported by sufficient or any evidence, we would deem it our duty to narrate in substance and discuss in detail the evidence relied upon by the plaintiff to support the findings and judgment; but in view of our conclusion, after a full examination of the record, that there exists a substantial conflict in the evidence offered and received in response to the issue of the value of the defendant’s services, no useful purpose would be subserved by narrating all of such evidence and then in detail demonstrating its conflict.

In support of the assertion that there is some evidence to support the finding of the court upon the issue of the value of the defendant’s services, it will suffice to say that the record shows that on June 8, 1907, the defendant Watt sent to the plaintiff, Mrs. Brodies, a statement of account showing a balance due to him for professional services and money expended in the sum of $344.30. Subsequently, in May of the following year, attorney Brueggerhoff of Austin, Texas, called upon the defendant Watt and exhibited a power of attorney from Mrs.

Brodies, which authorized Brueggerhoff to receive the stock in controversy from the defendant Watt and negotiate a settlement of the latter’s claim for professional services. Shortly thereafter Watt, recognizing the existence of the relation of attorney and client existing between Mrs. Brodies and Brueggerhoff, wrote to the latter, inclosing another statement of account, which showed a balance due to Watt in the sum of $331.50. In response to this statement Watt received a letter from Brueggerhoff requesting that the stock be forwarded to him, together with a draft upon Mrs. Brodies for the amount of Watt’s bill.

This letter from Brueggerhoff, written at the instance of and upon behalf of Mrs. Brodies, indicated clearly enough her desire to terminate the relation of attorney and client existing between her and Watt. The letter last referred to was dated June 22, 1908, and referred to Watt’s letter of June, 1907. In September, 1908, another letter from Brueggerhoff was addressed to and received by Watt, asking that Watt draw upon Mrs.

Brodies for the amount of his claim as rendered in his previous statement; and thereupon Watt in reply on September 17, 1908, mailed another statement to Brueggerhoff, showing a balance due of $409.60. These statements and correspondence were undoubtedly evidence of the condition of the account between Mrs. Brodies and Watt as understood by the latter in September, 1908. Subsequently, however, on April 1, 1909, Watt rendered another statement of account, showing a balance due of $759, to a Mr. Judkins, an attorney at law who had become associated with Mr.

Brueggerhoff in the transaction, and who had called upon Watt at the instance of Mrs. Brodies. Shortly thereafter the plaintiff brought the action to compel a delivery of the stock; and when issue was joined Watt’s claim had advanced to the sum of $1913.70.

We think it clearly appears from all of the statements rendered by Watt, considered in connection with other evidence, that at least seventy-five per cent of his claim was based upon expenses incurred and services rendered after he had been repeatedly, fully, and finally informed that his services were no longer needed by the plaintiff, and after she had repeatedly offered to pay the amount of his claim which, at the time of his dismissal, did not exceed, as evidenced by his own statement, the sum of $409.60.

That there was a very material conflict in the evidence with reference to the propriety of the charges made in the several accounts rendered by Mr. Watt for his per diem, and expenses of trips to Watson-ville for the claimed purpose of attending meetings of the corporation in which plaintiff was a stockholder, is evidenced by the records of the corporation, which show that upon several of the occasions charged for no meeting of the corporation was held, or if held, the defendant was not present.

One of the alleged errors of law relates to the ruling of the trial court admitting over the objection of the defendant Watt certain testimony of Mr. Judkins, one of the counsel for plaintiff, which, it is claimed, was offered and improperly received for the purpose of bolstering up the testimony of the witness Brueggerhoff, whose testimony, in deposition form, upon a certain phase of the case, it is claimed, was in conflict with the testimony of the defendant Wa,tt.

In this behalf it is the contention of the defendant Watt that the testimony complained of tended to show the good reputation of the witness Brueggerhoff for truth, honesty, and integrity, and therefore, by adding to the credibility of the witness, whose character in the particulars stated had not been previously assailed, gave his testimony greater weight with the trial court than it would otherwise have had.

It may be conceded that as a general rule evidence is not admissible to show the good character or reputation for truth and veracity of a witness whose character has not been attacked and whose testimony has not been impeached ; but in our opinion this rule has no application to the situation presented in the record before us. The testimony complained of was merely to the effect that Mr.

Judkins had at one time prior to the trial of the present action employed the witness Brueggerhoff as an attorney at law to look up and, pass upon certain legal matters in the state of Texas, and that he, Brueggerhoff, had handled these matters with ordinary skill and at all times conducted himself as a rational and well-balanced gentleman.

This testimony was provoked by and offered in rebuttal of the testimony of the defendant Watt, who, when testifying in his own behalf, declared that in his dealings with Attorney Brueggerhoff concerning the transaction, in suit, the latter manifested erratic symptoms and seemed incapable of understanding ordinary transactions, and generally did not deport himself as if he were a person of character and responsibility. In this view of the testimony we see no substantial error in the ruling of the court.

While the fact that Watt’s opinion as to the legal ability of Brueggerhoff was admitted in evidence without objection would not, in the presence of an objection from the defendant, warrant the introduction of material testimony in reply upon behalf of the plaintiff, nevertheless it is apparent that the testimony complained of, although objectionable, was not intended to show and did not, strictly speaking, have the effect of showing the good reputation of Brueggerhoff for truth and veracity.

The most that it did was to rebut the opinion of the defendant Watt to the effect that Brueggerhoff was not a capable and clear-headed lawyer. Brueggerhoff’s legal ability and mentality, however, were never facts of any importance one way or the other in the case, and did not, so far as we can ascertain, from the record, ultimately enter as an essential in the attempted adjustment of the defendant’s claim. That this is so is evidenced by the fact that in all of Watt’s subsequent dealings with Brueggerhoff, which were conducted by correspondence, the latter’s professional ability was never doubted or disputed.

Moreovér, we are unable to discern any material conflict in the testimony of Watt and Brueggerhoff as to what occurred when they first met to discuss Mrs. Brodies’ affairs; and therefore we cannot conceive how the testimony complained of, although immaterial and objectionable, could have weighed against the defendant in the mind of the trial court. We see no error in the ruling made over the objection of the defendant admitting the testimony of Brueggerhoff to the effect that he had exhibited a power of attorney from Mrs.

Brodies at his first interview with Watt, even though the power of attorney was not offered in evidence. The error, if any, in this behalf was harmless, for the reason that the defendant Watt in a subsequent interview with Brueggerhoff and in all of the correspondence referred to, recognized and treated with Brueggerhoff as the duly authorized attorney at law and in fact of Mrs. Brodies. The two remaining assignments of error alleged to have been committed by the trial court have no merit.

It is not apparent from our examination of the record that parol evidence was admitted to vary the contents of the written agreement of December 4, 1904; but even if this were so, the result would be harmless in view of the fact that after some preliminary testimony the agreement itself was finally admitted in evidence.

While objection was interposed to the question put to the plaintiff “Do you owe the defendant anything for services rendered in connection with the state of James Brodies ? ’ ’ upon the ground that it called for the conclusion of the witness, nevertheless no claim of prejudicial error can be predicated upon the admission of the testimony elicited by the question, because the plaintiff later testified, and apparently without objection, that all of the professional services rendered to her by the defendant Watt had been paid for in full.

We are of the opinion that the evidence sustains the material findings -of the lower court and that no prejudicial error appears in the conduct of the trial. The judgment and order appealed from are affirmed. A petition for a rehearing of this cause was denied by the district court of appeal on December 31, 1914, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on January 28, 1914.