I dissent from the order denying a rehearing in this cause, my dissent being based upon a ground not mentioned in the opinion of the court, although presented in the briefs. The trial court erred, in my opinion, to the prejudice of the defendant, in excluding all evidence of the terms of her contract with her attorney. Plaintiff's assignors were employed by her attorney, and never had any direct communication with the defendant regarding their compensation. Her defense to the action was, that she had not authorized the employment of additional counsel at her expense, and had only consented to the employment of plaintiff's assignors because her attorney desired their assistance, and upon the express condition that he should pay them for their services out of the fee which she had contracted to pay him. Upon this point there was a sharp conflict of evidence, and it appears from the bill of exceptions that at the close of the evidence the trial judge announced that he should find that her attorney's authority was limited, as claimed by defendant and her witnesses. The findings, as subsequently filed, however, are silent upon this specific point, being merely general, to the effect that her attorney was authorized to employ, and did on behalf of defendant employ, plaintiff's assignors, who thereupon performed valuable services, etc. In view of the statement of the trial judge above referred to, and of his rulings upon the offers to prove the terms of the contract between defendant and her attorney, I can only conclude that the findings as made were based upon the evidence offered by the plaintiff at the trial to prove that defendant knew that plaintiff's assignors were performing services in her behalf, and with that knowledge accepted such services. This evidence was relevant only upon the proposition contended for by the respondent in his argument here, and no doubt urged upon the trial court, that the acceptance of the services of his assignors implied a promise to pay for them. But this precise point was determined adversely to the respondent's contention in the case of Porter v. Elizalde, 125 Cal. 207. That was a case very closely parallel to this, in which it was held that the fact that the defendant had employed an attorney under an express agreement for a contingent fee could not be held liable to pay another attorney, employed by the first, the value of his services merely because *Page 572 she had chosen to accept them. If that case was correctly decided, — as I think it was, — it was highly material for the defendant to prove in this case, as she offered to do, that her attorney had contracted to perform, or procure to be performed, all professional services in her behalf for a fixed sum, to be paid only in case of success. It is true that it does not appear in this case, as it did in the Elizalde case, that the attorneys employed to assist the original attorney were actually advised of the terms upon which he had been employed, but it appears, by the plaintiff's own testimony, that he and his assignors knew that there was an express contract secured by mortgage. They had sufficient knowledge to put them upon inquiry, and are charged with actual notice of all they could have learned by inquiry in the proper quarter, — i.e. of Mrs. Ballerino, with whom they had abundant opportunities to confer.
For these reasons I think the court erred in refusing defendant's offers to prove the terms of her contract with her attorney, and that the error in those rulings clearly shows that the findings and judgment were based upon the precise contention overruled in the case of Porter v. Elizalde, 125 Cal. 207.