
    [Civ. No. 1996.
    First Appellate District.
    June 7, 1917.]
    B. M. JACKSON, Appellant, v. D. C. BROWN, Respondent.
    Action fob Legal Services—Account Stated—Insufficiency of Evidence.—In this action to recover an alleged balance for legal services, it is held that the evidence fails to sustain the portion of the complaint which alleged a cause of action upon an account stated, and upon which the case was submitted for decision.
    APPEAL from a judgment of the Superior Court of San Mateo County. George H. Buck, Judge.
    The facts are stated in the opinion of the court.
    B. M. Jackson, in pro. per., for Appellant.
    E. S. Bell, J. J. Bullock, and Michael Brown, for Respondent.
   KERRIGAN, J.

This is an action brought to recover a balance of an attorney’s fee alleged to be due for services rendered by plaintiff to the defendant.

The complaint contained several counts. At the trial it was contended by the defendant that while he had paid part of the fee for which he was being sued, such payment was made as an accommodation to his attorney, who was not entitled to his fee nor to any part of it until the judgment in a certain action should be recovered and the amount thereof collected. After practically all the evidence was in, it' was suggested that the further trial of the cause be postponed in order to give the defendant an opportunity to introduce evidence to the effect that a written contract had been entered into by the parties providing that the plaintiff’s fee here sought to be recovered was to be contingent upon a certain event which had not yet happened, whereupon the plaintiff, in order to conclude the matter, proposed that the case be submitted on that portion of his complaint which alleged a cause of action upon an account stated, and that he waive the remaining counts of his complaint. This was agreed to and the cause submitted.

With the trial court we think that the evidence does not sustain the view that there was an account stated. Early in January, 1916, the plaintiff wrote to the defendant a letter claiming that there was a certain balance due him on account of his fee in a suit conducted by him for the defendant, entitled Brown v. Lee. The defendant in a prompt reply neither expressly nor tacitly admitted the indebtedness, and in fact turned the matter of the claim over to an attorney for attention and adjustment. This correspondence and another letter written on behalf of the defendant, together with several conversations, telephonic and otherwise, between the parties clearly show that the negotiation fell far short of constituting an account stated.

The judgment is affirmed.

Richards, J., and Beasly, J., pro tern., concurred.  