Baker v. Eilers Music Co.

Plaintiff brought his action to recover upon two promissory notes executed by defendant to him. The notes are pleaded in Tiaec verba in the complaint and each provides for the payment “of a reasonable attorney’s fee if suit is commenced to enforce the payment. ’ ’ The total amount due on these notes was twelve thousand two hundred dollars. Defendant answered by pleading a composition agreement whereuñder the notes were to be paid not according to their

It is not altogether easy to follow the contentions of appellant. The complaint charged for the amount due upon the promissory notes and a reasonable attorney’s fee. The pleadings admitted the execution of the notes. The defense of a composition agreement for deferred payments failed utterly, and the defendant had deposited in a bank for plaintiff on account of these notes before the trial the sum of twelve thousand two hundred dollars, principal and interest, leaving unpaid only the attorney’s fee and costs, to be fixed by the court. Upon this statement being made to the court by plaintiff’s attorney, the court fixed the attorney’s fee in the sum of one thousand dollars. Where a promissory note so provides for the payment of a reasonable attorney’s fee, it is the province of the court to fix that amount in its discretion and without the introduction of direct evidence upon the matter, and only for an abuse of discretion—which does not here appear—will the court’s action be reversed. (Woodward v. Brown, 119 Cal. 283 , [ 63 Am. St. Rep. 108 , 51 Pac. 2 , 542]; Patten v. Pepper Hotel Co., 153 Cal. 461 , [ 96 Pac. 296 ].)

The appellant offered the judgment-roll in an action which bore the same title as this, but which in all other respects was totally different. That was an action by the landlord prosecuted against his tenant to recover one months’s installment of rent. The defense was the eviction of the defendant from a portion of the demised premises, the refusal of the landlord to restore that portion of the demised premises, the rescission by defendant of the contract of lease and its surrender of its possession. Upon the trial of that action the court found in favor of this defense and gave judgment accordingly, from which judgment the plaintiff prosecuted his

The second reason is this: In the action for rent the counterclaim or cross-complaint for damages occasioned to the tenant by his eviction not only could have been pleaded, but should have been pleaded, and defendant’s failure to plead it in that action estopped it from doing so in the present action. Indeed, the judgment-roll might have been offered by plaintiff himself to establish defendant’s failure to plead his damages for eviction and thus to estop him from his efforts to establish it in the present action. The matter is conclusively covered by section 439 of the Code of Civil Procedure, when it declares that: “If the defendant omits to set up a counterclaim upon a cause arising out of the transaction set forth in the complaint as the foundation of the plaintiff’s claim, nei

To all of this appellant interposes the utterly frivolous contention that the judgment-roll was admissible because respondent did not prove nor offer to prove that the judgment embraced in the judgment-roll was on appeal to district court of appeal, and, therefore, argues appellant, this court “is bound to assume that no such appeal had been taken. ’ ’ What the record does disclose upon this point is that upon the tender of the judgment-roll by defendant’s attorney the court asked whether the judgment had become final, and plaintiff’s attorney responded, “The judgment-roll was appealed from to the district court of appeals on the judgment-roll without a bill of exceptions and that appeal is now pending.” The court then ruled that the judgment-roll would not be admitted in evidence for any purpose whatsoever, “as the pendency of the appeal renders it utterly useless in any respect in this case.” To this appellant’s attorney made no response other than to save his exception. He did not and does not contend that the appeal was not taken and was not in fact pending. He did not object to the insufficiency of the statement of counsel as not measuring up to legal evidence. He made not the slightest effort in the trial court and makes none here to show the contrary of the fact stated by the attorney for plaintiff. The practice of the law has indeed fallen on evil days if the statement of a sworn officer of the court under these circumstances, and where no objection is made to its sufficiency, may not be considered by the court itself. But in addition to this, for the reason last given, namely, that the defendant had lost its right to counterclaim for damages, the ruling of the court was sound, even though the judgment had been absolutely final in defendant’s favor.

It is last contended that a copy of the findings and judgment were served on defendant’s attorney on May 22d and were signed and filed on May 25th, and that thus violence was done to section 634 of the Code of Civil Procedure, which declares that the court shall not sign any findings prior to the expiration of five days’ service upon all the parties, and that therefore defendant was “denied a substantial right.” What that substantial right may have been we are not advised. Conceding it to have been error for the court thus to have signed and filed the findings within the five days’

Wherefore the judgment and order appealed from are affirmed.

Lorigan, J., and Melvin, J., concurred.