Jordan & Bull, for Petitioner.

Dorn & Dorn, for Respondent.

PATERSON, J.-On August 25, 1884, in an action pending between plaintiff and his wife in the superior court, the bonds of matrimony existing between the parties were dissolved, and Spencer, the plaintiff herein, was ordered to pay to his wife the sum of fifty dollars per month alimony. The decree was, on May 13, 1887, so modified as to require him to pay the sum of twenty-five dollars per month. month. On December 24, 1888, Mrs. Spencer presented to and filed in the court below an affidavit alleging that nothing had been paid to her under the modified decree for alimony for over six months prior to that date, although the plaintiff was and had been amply able to respond to the order. Spencer, the petitioner herein, was thereupon cited to show cause before the court why he should not be punished for contempt. The parties appeared before the court on December 27th, and after a full hearing the court decided that the petitioner herein had contumaciously refused to obey the order of the court, adjudged him guilty of contempt, and committed him to the custody of the sheriff until the amount of alimony due should be paid. On the following day, his attorneys gave notice that he would apply to respondent herein, Hon. F. W. Lawler, presiding judge of the department in which the order adjudging petitioner guilty of contempt was made, for a discharge under the provisions of sections 1143 et seq. of the Code of Civil Procedure.

It is alleged in the petition herein that respondent sent a messenger to petitioner's attorneys, informing them that he would not hear the application for a discharge on the thirty-first day of December,-the time fixed in the notice, or at any other time; that nevertheless said attorneys appeared in court on the day last named to

make the application aforesaid, but respondent was not present to hear it. Upon these facts the petition was filed herein February 2, 1889, asking for a writ of mandate commanding respondent to hear petitioner's application for a discharge from imprisonment.

In his answer, the respondent admits that an application was made, as alleged, for a discharge on December 28th, but alleges that he did not consider such an examination necessary at that time, because he had fully and fairly examined into the matter of petitioner's ability to pay the alimony on the day previous, but that he (respondent) at all times since the expiration of ten days from and after December 27th has held himself in readiness, as judge of said court, and is now ready and willing, to make whatever examination, and to hear whatever testimony may be produced by petitioner, touching his ability to pay the several sums of money as ordered.

We think that the respondent properly refused to again examine into the matter so soon after the examination, which was held on December 27, 1888. (In re Wilson, 75 Cal. 580.) Furthermore, it appears, taking the answer of the respondent as true, and there is nothing to the contrary, except the allegation that a messenger informed the attorneys of the petitioner respondent would not hear it at all, that if the application had been renewed at any time subsequent to the expiration of the ten days referred to by the respondent, and before the time when this petition was filed herein, the respondent would have made the examination which we are asked here to require him to make. The attorneys for peti tioner ought not to have relied upon communications from a messenger or the clerk; they should have applied to the judge of the court. If they had done so, this petition would have been unnecessary.

The matter now between the parties seems to be one simply of costs. In view of the facts that petitioner's application would have been granted if made to the

court below at any time after January 6th, and that no application was made, we think he should pay the costs of this proceeding.

Petition dismissed.

MCFARLAND, J., and BEATTY, C. J., concurred.

[No. 11871. Department Two.-May 23, 1889.] COLUMBUS BARTLETT, RESPONDENT, v. ODD FEL LOWS' SAVINGS BANK, APPELLANT.

ATTORNEY

AND

CLIENT-COMPENSATION-ENTIRE

CONTRACT-DISCHARGE OF ATTORNEY-MEASURE OF DAMAGES.-An attorney who receives a salary under a general employment by a corporation which may be changed at any time may properly make a special contract with the corporation for services in a particular case; and if discharged from such case without cause, may recover the amount of money to which he would have been entitled had the defendant allowed him to complete the entire service which he had contracted to perform, with interest from the time it became due. ID.-STATUTE OF LIMITATIONS.-When the compensation which an attorney is to receive is to depend for its time of payment upon the time when the corporation should obtain by judgment or compromise the payment of the claim sued upon and its amount is to be controlled by the amount so received, the cause of action for services does not accrue until the receipt of the money collected from the defendant; and no suit could be brought before that time for breach of contract in discharging the attorney from his employment. ID. BREACH OF CONTRACT-PLEADING ALLEGATION OF DAMAGES.—A complaint showing a breach of contract by the defendant in refusing to pay an agreed compensation to the plaintiff as attorney, who was prevented by the defendant from fully performing the contract on his part, and alleging that a certain sum of money and interest is due under the contract, is not insufficient in not containing a specific allegation of damages, the facts being stated which in law constitute his damages and their measure.

APPEAL from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.

The facts are stated in the opinion.

C. L. Tilden, for Appellant.

The relations between attorney and client are confidential, and the attorney must show that no advantage was taken of the client. (1 Story's Eq. Jur., secs. 301, 311; Civ. Code, secs. 1992, 2215, 2216, 2235, 2338; Kisling v. Shaw, 33 Cal. 425-440; 91 Am. Dec. 694; Valentine v. Stewart, 15 Cal. 401; Nesbit v. Lockman, 34 N. Y. 167169; Hitchings v. Van Brunt, 38 N. Y. 342.) During an employment by the client, the attorney cannot make a binding contract for greater compensation. (Weeks on Attorneys, sec. 346; Lecatt v. Sallee, 3 Port. 115; 29 Am. Dec. 249.) The complaint fails to allege damages, and does not suport the judgment. (Bohall v. Diller, 41 Cal. 533; Huston v. T. etc. Co., 45 Cal. 553; Pittsburgh Coal Co. v. Greenwood, 39 Cal. 71; Utter v. Chapman, 38 Cal. 659; Rowe v. Bradley, 12 Cal. 231; Clark v. Marsiglia, 1 Denio, 317; 43 Am. Dec. 670; Sedgwick on Damages, 210.) The cause of action is barred, the limitation. running from the breach, when plaintiff was discharged. (Angell on Limitations, secs. 136, 137; Bishop on Contracts, secs. 690, 837-842; 3 Parsons on Contracts, 91, 93; Bonestell v. Van Etten, 20 Hun, 470; Wood v. Currey, 57 Cal. 208; In re Paschal, 10 Wall. 483-496; United States v. Behan, 110 U. S. 338-346; Wolf v. Marsh, 54 Cal. 232; Dillon v. Anderson, 43 N. Y. 231; Wiseman v. Panama R. R., 1 Hilt. 300; Howard v. Daly, 61 N. Y. 362; 19 Am. Rep. 285; Owen v. Frink, 24 Cal. 178; Shannon v. Comstock, 21 Wend. 457; 34 Am. Dec. 262; Cooper v. Pena, 21 Cal. 403, 412; Oakley v. Morton, 11 N. Y. 33; 62 Am. Dec. 49; Tenney v. Berger, 93 N. Y. 524-529; 45 Am. Rep. 263; Crandall v. Clark, 7 Barb. 171; Adams v. Fort Plain Bank, 36 N. Y. 253; Bathgate v. Haskin, 59 N. Y. 535; Jones v. Lewis, 11 Tex. 359; Gross v. Kierski, 41 Cal. 113.)

Stanley, Stoney & Hayes, for Respondent.

The agreement was valid, notwithstanding previous employment of the attorney under salary. Fitch v. Gar

denier, 2 Keyes, 516; Clay v. Ballard, 9 Rob. (La.) 308.) The measure of damages, when performance is prevented, is the compensation provided for in the contract. (Baldwin v. Bennett, 4 Cal. 392; Hunt v. Test, 8 Ala. 713; 42 Am. Dec. 659; Wylie v. Coxe, 15 How. 415; Bright v. Taylor, 4 Sneed, 159; Coffee v. Meiggs, 9 Cal. 364.) Where a contract is contingent or conditional, limitation does not begin to run until accomplishment of the condition. (Wood on Limitations, 265, 266; Nugie on Limitations, sec. 115; Smith v. Lawrence, 38 Cal. 29; 99 Am. Dec. 344.) The complaint is not defective. (Civ. Code, sec. 3302.) The plaintiff may show himself to have sustained damages by stating the facts which in law constitute damages and their measure.

FOOTE, C.-This action was brought by an attorney at law to recover a sum of money alleged to be due him by the defendant. Judgment passed for the plaintiff as prayed for, from which, and an order denying a new trial, the defendant appeals.

The points made for the reversal of the judgment and order are:

1. That the facts set up in the complaint show that the action was not brought to recover compensation for services rendered as an attorney, but that the cause of action is founded upon a breach of contract by the defendant, and arose when the relation of attorney and client was terminated, and was therefore barred by the statute of limitations.

2. That the contract as alleged is of a kind where the presumption arises that it has been entered into without consideration, and under undue influence, and this presumption has not been overcome by the plaintiff.

3. That the contract alleged was entered into by the defendant while laboring under a mistake of fact, and that the defendant had a right under the law to rescind it.

4. That the complaint is insufficient in that it does