The herald., 1893-08-29
SIX OPINIONS ARE RECEIVED,
The Supreme Court Passes on
Los Angeles Cases.
The Twenty-Mile Limit Question Once
More.
Some Cases of More Than Passing Inter.
est-Discussed by the Court-An
Attorneys victory-Points
OF the Gases.

Yesterday was q lively day in the
local supreme court Office, Mr.. Sesnon,
deputy clerk. receiving six opinions
from San Francisco for filing.
The judgment of the superior court
was reversed in the case of George w.
Daw, respondent, We. william and John
B. Niles. appellants.
II was an action in Los Angeles county
to foreclose mortgage executed by de-
fendants to secure their promissory note
to plaintiff for $4,000, with interest at
per cent per annum and payable 10
years after date; the interest, if not
paid annually, to be compounded. The
note further provided that, If the inter-
est was not paid annually, then the
whole sum of principal and interest
should become due and Immediately
PAYABLE at the option of the holder. The
note was given for money loaned.
The defendants having made default
in the payment of interest the plaintiff
exercised his option and commenced
the action March 27, 1891. The defend
ants pleaded as defense that, at the
time Of the execution OF the note and
mortgage, as a part of the same contract
it was agreed that the defendants pay all
taxes and assessments which might be
assessed or levied upon the money
loaned and the mortgage, and that the
agreement was knowingly omitted from
the mortgage with intent to evade the
provisions OF section 5 of article IL oi
the state constitution that the interest
never became due and the action was
premature.
The decree was in favor of the plain
tiff, foreclosing the mortgage for the full
amount of the principal with compound
interest. The defendants appealed from
the judgment aud showed that they
offered to prove the alleged contempo-
raneous agreement to pay the taxes and
assessments by oral evidence, which was
rejected by the court on the ground that
it could be proved by written evidence
only. Counsel for appellanN contended
that the court erred in rejecting the
evidence. The supreme court thinks
likewise and reversing the Judgment re-
mands the cause for new trial.
THE ATTORNEY CAME HIGH.
The case of G. j. Perkins, appellant,
vs.. the West Coast Lumber company is
also reversed and remanded for new
trial.
The plaintiff sued for services as an
attorney and counsellor-at-law in the
superior court. He alleged that the
company contracted with him June ],
1888, for his services, agreeing to give him
$35 per month, as general retainer and
as compensation for writing letters, ad-
justing claims and for advice, and
agreed to pay q reasonable compenea-
tinn for services in prosecuting and de-
Tending suits. He performed such SER
vices until March, 1890, which were
worth $735, and also performed other
services, during the same period, in
prosecuting and defending suits and
drafting instruments, worth $3U44.70.
He was paid on. account of such services
$1865.15. He also alleged that he ex-
pended $116.20 for the defendant, and
asked Judgment for $19S1.35.
The answer consisted OF 9 general de-
nial an averment of a contract different
from that alleged by the attorney, with
a plea of payment; claim of full per-
formance and a claim OF goods sold to
plaintiff amounting to 1885,. 10, OF which
1854 60 has not been paid, and asked
Judgment for that amount. The court
found the contract as averred by the
attorney; also the value OF the services
on general retainer to be $735, and
$3228.53 for other services, and that he
laid out $116.20 for the defendant; total,
$4078.73. The court also found that the
plaintiff was employed by the defendant
prior to the employment alleged in the
complaint, against one Newman, and so
negligently advised defendant that it
lost $3408.77, which sum it found was
Justly due to the defendant as damages.
As q conclusion of law the court found
the defendant entitled to Judgment
against the plaintiff for s661. 40.
The supreme court sustains appellants
position that there was nothing to sup
port the finding of the damage as
counter claim. The negligence was not
in the performance of any part of the
service for which the suit was brought.
But the court also holds that it does not
follow that plaintiff is entitled to judg-
ment on the findings for the balance
that will then appear due. The court
thinks the fairest thing ia to remand the
cause for a new trial, when the trial
court can allow such amendments to be
made to the pleRdings as will be con-
ducive to justice.
DUPUY VS.. MACLEOD AFFIRMED.
The supreme court affirms the judg-
ment in the case of E. Dupuy. respond
ent, va. Malcolm Macleod, appellant.
1t was an action to recover the sum of
$500, the balance due on sale of stock
of merchandise and store fixtures sold
and delivered by the plaintiff to the de-
fendant at Los Angeles May 81, 1890.
The plaintiff averred the sale was made
for $500, $1,000 In cash and the 5000 to
be paid as follows: When 500 worth
OF stock was sold 500 to be deducted by
defendant as commission and $50 paid to
plaintiff, and 90 on until the $500 was
paid. Ii the stock sold did not amount
to sufficient to pay the $500, after de-
Quoting 20 per cent, the plaintiff was to
receive the 80 per cent in full payment.
He averred the sale OF sufficient stock to
entitle him to full payment, and the evi.
dence sustained him in the last asser.
tion.
The defendant averred that the agree
mentwas that the $1,000 paid in cash was
first to be deducted from the proceeds Of
sales before any further payments were
made, and then payments were to be