This action was to recover for the value of the services rendered to defendant by plaintiff's assignor, Henry E. Highton, as attorney and counselor at law. The jury returned a verdict for plaintiff for the sum of $8,755.60, and from the judgment which followed and from the order denying defendant's motion for a new trial he prosecutes these appeals.
It is urged with much earnestness that the evidence is insufficient to justify the verdict, in that the services of Mr. Highton were of far less value than the jury found. But this is only another form of saying that the value placed upon the services by the jury was excessive. That value, however, was within the evidence, and the finding cannot be disturbed.
The remaining points presented on this appeal go to alleged errors of the court in its ruling upon offered evidence. Upon cross-examination, the witness Highton was asked several questions touching his employment in the Ashley case. Objection was interposed to these questions and the objection sustained. The fact of Mr. Highton's employment in this case was admitted by the pleading; the plaintiff charged for the value under quantummeruit. There was no pretense on behalf of plaintiff that the compensation in this litigation was fixed in any specific sum. The questions, therefore, were irrelevant to any issues made in the case. The employment of Mr. Highton in the Ashley case having been admitted, the court said: "Then, what concern is it to the jury how he came to be employed?" Appellant's counsel replied: "It has a relevancy to the question as to whether there was any agreement as to the amount of his compensation." This is the only reason for propounding the question, but, as has been said, there was no claim whatsoever that the amount of his compensation had been fixed. Moreover, the same question was subsequently asked in different form, the witness fully interrogated upon the matter, and his answers received.
Mr. Crittenden had been an attorney against Mr. Highton in the trial of the Ashley case. Asked as to the value which he put upon the services of Mr. Highton in that litigation, which came under his (Mr. Crittenden's) observation, and *Page 533 concerning the nature of which he had already testified, the witness answered: "I could not answer that question, unless I looked into my mind, and then reviewed the study of matters that came under my observation; otherwise, I cannot answer it. — Q. Taking that into consideration, what would you say as to the reasonable value of those services." The witness then answered, fixing the value at twelve thousand dollars. The objection to this is, that the witness was allowed to fix the value by looking into his mind, and testifying in regard to facts not in evidence; but the witness had already presented to the jury the facts upon which he based the valuation, and there was no error in the admission of the evidence. Again, the same witness is asked: "According to your basis, and according to the way practice ordinarily runs, what annual income would that make to a man?" The court properly sustained an objection to this question, saying: "That would depend upon the number of cases. The witness could not possibly answer the question."
The hypothetical question asked of the witnesses Paterson, Campbell, and Jordan were answered, and subsequently the court reconsidered its ruling, and the answers were stricken out, upon motion of defendant's attorney. If there was error in the reception of this evidence, it was cured by striking it out, and nothing was left for the defendant to complain of. (People v.Wilson, 109 N.Y. 352; People v. Shaver, 120 Cal. 354.) The court instructed the jury as follows: "If you believe from the evidence, that Mr. Highton agreed with Mr. Baldwin and Mr. Unruh at the time of his employment in the case of Ashley v. Baldwin, that Mr. Unruh and Mr. Baldwin should fix the amount of compensation for the services to be by him rendered in that case, and that he was to receive and accept the sum they saw fit to name, yet, if defendant, before the commencement of this suit, denied any liability or indebtedness to Highton, and if it was not also agreed between them that no suit should be brought against Mr. Baldwin to recover the value of the services until after such sum or amount had been by Mr. Baldwin and Mr. Unruh so fixed, then, in that event, I charge you that such an agreement, if any, is not a bar or a defense to this action, and plaintiff is entitled to a verdict at you hands for the reasonable value of the services by him rendered, if any, after deducting therefrom *Page 534 any sum or amount due from Mr. Highton to defendant, if any." It is asserted that this was error, in taking away from the consideration of the jury the special defense pleaded in the answer, to the effect that the value of the services of Mr. Highton rendered in the Ashley case should be determined by defendant and one H.A. Unruh, and that defendant should not be required to pay Mr. Highton for his services in the Ashley case any sum whatever, until the amount thereof had been fixed and determined by defendant and Unruh. But, as was said by this court in Remy v. Olds, 88 Cal. 542: "The law does not require the performance of a useless act, and when it is made to appear, by the defendant's own act, that the demand would have been refused, then they cannot be heard to object that no demand was made." Here the defendant had persistently denied that he owed his attorney anything on account of the services in the Ashley case. Moreover, there was no provision in the agreement pleaded in the answer that no action should be brought until after defendant and Unruh had fixed the amount of Mr. Highton's compensation. InHamilton v. Home Insurance Co., 137 U.S. 370, a like question came under consideration. The action was upon an insurance policy, which contained the following clause: "In case differences shall arise touching any loss or damage, . . . the matter shall, at the written request of either party, be submitted to impartial arbitrators, whose award in writing shall be binding on the parties as to the amount of such loss or damage, but shall not decide the liability of this company under this policy." The supreme court of the United States held that this clause could not be availed of as a plea in bar to the action, in the absence of a further provision, which it did not contain, that no action should be brought until after the award. But if it be conceded that there was any error in the instruction, it was certainly harmless to appellant, since, throughout the case, he denied any indebtedness to Mr. Highton upon account of his services in the Ashley litigation.
*Page 535The judgment and order appealed from are therefore affirmed.