I dissent. I agree with a great deal of the discussion in the majority opinion, and even to a larger extent with the authorities therein cited, relative to the rules of law which should govern this case but I think this court misapplies the very rules it cites.
Specifically, I think this court errs when it says “there being no dispute as to the amount called for in the contract, the services having been in effect fully performed, the court should have rendered judgment for the balance due on the contract which is conceded to be $300. ’ ’ The foregoing statement is neither supported factually by the record nor legally by the authorities cited.
Upon the record and the authorities the judgment should be reversed and the cause remanded either (a) with directions to the trial court to enter judgment for the plaintiff for $5,000 or (b) for a retrial upon all issues. I would prefer to end the litigation by adopting alternative (a) and in my view the record fully justifies that disposition of the cause. Directed to that conclusion is the succinctly stated opinion prepared by Justice Vallée when the cause was before the District Court of Appeal (reported at (Cal.App.) pp. 932-933, 265 P.2d) and I adopt it as a most worthy presentation of the views which I think should prevail:
*308“I am of the opinion that the judgment should be reversed with directions to the superior court to render judgment for plaintiff for $5,000. The court found that the reasonable value of the services performed by plaintiff is $5,000. Plaintiff was the only witness who testified concerning his discharge by Dr. Campbell. The opinion of this court fails to state all of the testimony of plaintiff with respect to his discharge. I set it forth in ioto in the margin.1 I think *309no reasonable conclusion can be drawn from the evidence other than that the discharge amounts to a clear repudiation and abrogation of the contract in its entirety, in which case plaintiff is entitled to recover the reasonable value of the service performed. The contract plaintiff made with Dr. Campbell did not limit his services to the trial of the case.2 (Italics added.] Under the contract he agreed to represent the doctor until final judgment, and he told the doctor that he ‘thought the case would be reversed on appeal.’ [Italics added.] Manifestly, the evidence will be no different on a retrial. Dr. Campbell is dead. Plaintiff is the only witness who can *310testify to the conversation. There is nothing in plaintiff’s testimony to impugn his integrity. He did all any lawyer of the highest professional standards could have done under the conditions. Defendant waived plaintiff’s disqualification under the dead man’s statute.3 (Deacon v. Bryans, 212 Cal. 87, 90-93 [298 P. 30].) Defendant will be unable to make any showing to the contrary of the testimony of plaintiff. Under these circumstances, the judgment should be reversed with directions as I have indicated. (Conner v. Grosso, 41 Cal.2d 229, 232 [259 P.2d 435].)”
Dooling, J. pro tern.,* concurred.
‘ ‘1 ‘ Q. Mr. Oliver, did you have any discussion with Dr. Campbell about that contract or as to the writing of that contract sometime after Judge Clark had announced his decision, and about the time that you had received the proposed findings of fact drawn by Mr. Shoemaker for Mrs. Campbell. . . .
“ ‘The Witness: I did not.
“ ‘By Mr. Neblett: [Attorney for plaintiff],
“ ‘Q. Did you have a discussion with Dr. Campbell about that time in your office? A. I did.
“ ‘Q. What was said? ... A. Dr. Campbell came into my office and stated that he was dissatisfied with the announced judgment of the court. In his opinion, Mrs. Campbell should have been allowed nothing in way of alimony. I told Dr. Campbell that after 28 years of married life and with his property and his earning capacity that I thought the least the court would have allowed would have been possibly $250.00.a month.
“ ‘He also stated to me at that time that he was dissatisfied with the proposed amendments that I had prepared on the findings of fact and conclusions of law because he thought the findings should state in there that Mr. Shoemaker had suborned and bribed certain witnesses for the plaintiff.
“ ‘ I told Dr. Campbell that there was no evidence of any such action on the part of Mr. Shoemaker and that I was not going to submit to the court any proposed findings in that regard.
“ ‘He stated at that time that if I wouldn’t run this case the way he wanted it that he would discharge me, and asked me if I would sign a substitution of attorneys. I told him that I recognized that he had the power to discharge me as his attorney, that I was prepared to carry the case through to a conclusion, and I thought the case would he reversed on appeal. [Italics added:]
“ ‘He said “no,” he wanted to act as his own attorney, so he could argue the proposed findings himself; and with that I prepared the substitution of attorneys which is in the file, and Dr. Campbell signed it and I signed it.
“ ‘He left the office carrying the files of this case, the divorce case, and also the file of the Municipal Court ease with him, and that is the substance of the conversation.
“ ‘Q. You turned over to Dr. Campbell at that time all of the files in Campbell against Campbell? A. The two eases.
“ ‘Q. And the other case that is, the case in the Municipal Court? A. The entire file.
“ ‘Q. You have had nothing to do with the case from that time until now? A. I have, not.
“ ‘ Q. Mr. Oliver, will you look in the file of Campbell against Campbell, Number D370,670, and find the substitution to which you have just referred? A. Here it is.
, “ ‘Q. This substitution which you have presented to me appears to have been signed by Dr. Campbell, January 25, 1951, and by John Oliver *309on account of Ralph D, Paonessa and John Oliver on the same day? A. That is correct.
“ ‘Q. That is Dr. Campbell’s signature? A. That is Dr. Campbell’s signature; he signed that in my presence; and that is my signature.
“ ‘Q. That reads: “Defendant and cross-complainant hereby substitutes himself Roy Campbell in pro. per. as his attorney of record in place of Ralph D. Paonessa and John Oliver,”
“ ‘and under that: “We consent to the above substitution, dated: January 25, 1951.”
“ ‘Then on the other page there is another signature of Dr. Campbell above “substitution accepted.” A. That is correct.
“ ‘Q. Did you have any conversation at that time with Dr. Campbell about compensation? A. Yes, I told him that I expected to be paid the reasonable value . . .
‘ ‘ ‘ (Continuing) That I expected to be paid a reasonable value for my services. He says: ‘ (What do you think the reasonable value of your services are?” I said, “I expect to be paid as much as Mr. Shoemaker.” . . .
“ ‘Q. When you told Dr. Campbell that you expected to be paid and you expected to be paid approximately, or the same amount that was allowed Mr. Shoemaker what did Dr. Campbell say? A. He said, “I am not going to pay you a cent more. ” ’ ”
‘The contract reads:
“December 16th, 1949
“ ‘We, the undersigned do hereby agree to represent Roy Campbell in an action for separate maintenance instituted by his wife, Iva Lee Campbell and on cross-complaint for divorce filed by Roy Campbell against his wife, and which has been set for trial for February 20th, 1950 in Department 1 of the Superior Court of the County of Los Angeles State of California for a total fee of $750.00 plus Court Costs and other incidentals in the sum of $100.00 making a total sum of $850.00. Said fees of $750.00 to be paid after trial.
“ ‘Ralph D. Paonessa
“ ‘John Oliver
“ ‘I accept the services of Ralph D. 'Paonessa and John Oliver as per above agreement.
“ ‘RC’ ”
“The court fails to state that in questioning plaintiff, in addition to asking him with respect to the payments that had been made on account, defendant’s attorney questioned him about his signature and that of Mr. Paonessa on the contract, and thus waived plaintiff’s disqualification under section 1880 of the Code of Civil Procedure.
Assigned by Chairman of Judicial Council.