But timony offered by defendant, establish a case and Ghiselin the relationship of copartners. justifying his disbarment, in support of which This is based upon the fact that appellant he cites a number of authorities from other and Ghiselin conveyed to Goetz 5 per cent. jurisdictions. interest in their option. We are unable to perceive any merit in the contention. conceding the existence of the copartnership, such fact would not constitute any defense to a proceeding brought against an attorney for acts constituting moral turpitude in defrauding his partner. [1] What was said by the Supreme Court, in answering a like contention (In re Morton, 179 Cal. 510, 177 Pac. 453), is appropriate here: [4] In support of a motion for a new trial made by defendant, he filed an affidavit wherein it is alleged that the court abused its discretion in (a) denying a few minutes continuance of the case to allow appellant to secure the evidence of the president of the Bar Association as to the alleged fact that Goetz had exonerated appellant from any "Basing his contention upon the fact that a proceeding for the disbarment of an attorney is in the nature of a criminal proceeding (In re Alameda County Bar Ass'n, 35 Cal. App. 534, 170 Pac. 432), counsel insists that, to warrant disbarment, the evidence, like that required to justify a verdict of guilty in a criminal case, must be clear, positive, and such as to establish both the motive and commission of the act charged beyond a reasonable doubt. In support of this proposition he cites a number of authorities from other jurisdic- misconduct; (b) that an affidavit by comtions, an examination of which, however, shows that none of them involved cases on appeal where the court was called upon to review the sufficiency of the evidence in support of the finding, but what was said therein related to proceedings of disbarment over which the court, in some of the cases having recourse to a referee in the taking of the evidence, assumed original jurisdiction, acting as a trial court, as In re Houghton, 67 Cal. 511, 8 Pac. 52. None of them constituted authority for appellant's claim, when applied to a court charged with the duty of reviewing the testimony, but do announce the rule that in such cases the accused should not be convicted unless the trial court is convinced, by clear and satisfactory evidence, or, as said in some cases, beyond a reasonable doubt, of his guilt. However this may be, this court, in a like case involving a like question (Matter of Danford, 157 Cal. 425, 108 Pac. 322), has, in effect, held that in disbarment proceedings, as in other cases, a court of review cannot determine the weight to be given conflicting evidence, but that such determination is the peculiar and exclusive province of the tribunal wherein the hearing is had." Hence, since the trial court in the exercise of its function believed the testimony of Goetz, and, though conceding its denial on the part of defendant, we cannot say the evidence was insufficient to justify the implied finding of the court that defendant was guilty of acts constituting moral turpitude, which is anything done contrary to justice or honesty and with the purpose of defrauding another, regardless of whether such acts rise to the dignity of a crime. In re Disbarment of Coffey, 123 Cal. 522, 56 Pac. 448; In re Kirby, 10 S. D. 322, 73 N. W. 92, 39 L. R. A. 856. On the contrary we hold appellant's contention in this regard to be without merit. [2] Neither is there any merit in the contention that section 1110 of the Penal Code, which specifies the character of proof required in order to convict one of false pretenses, is applicable to a case of this char acter. [3] Another argument made by appellant is plainant exonerating appellant was in the possession of the secretary of the Bar Association; (c) that after the alleged misconduct of appellant he acted as attorney for Goetz; (d) that prior to the disbarment proceeding Goetz sued appellant and Ghiselin and in his complaint and testimony offered at the trial made statements inconsistent with his testimony given in this proceeding; (e) that the disbarment citation was returnable October 9, 1918, and the case was tried October 15, 1918, over the objection of appellant, during which time appellant's counsel was sick and appellant unskilled in the trial of a lawsuit and therefore unable to present a proper defense. As to all of these, and other like contentions, a sufficient answer thereto is that the record discloses no such applications made during the trial of the case, and no facts are stated in the affidavit showing the discovery of any new evidence which was not known and accessible to defendant at the time of the trial. There is nothing in the record showing that defendant, when the case was set down for trial, made any objection thereto upon the ground that the time was too short for him to prepare his defense, or that he asked for continuance in order to produce the evidence of the president of the Bar Association. On the contrary, the effect of the affidavit is to merely show that defendant omitted the doing of things which he thereafter felt that he should have done in protecting his interest at the trial. It may be, as suggested by appellant, that such omissions were due to the inefficiency of counsel then appearing for him; but the court cannot, in the absence of a duly authenticated record showing error, reverse an order upon such ground. At the close of the trial the court, in rendering its judgment, said: "I realize the seriousness of disbarring an attorney, but the accused is not doing a very substantial amount of law practice, according to his own statements, and there would not be (190 P.) [5] It has been repeatedly held that the reasons stated by a judge in deciding a case are no part of the judgment and have no place in the record, and hence present nothing to be considered in reviewing a judgment on appeal therefrom. However, we may say that in arriving at its decision we cannot believe the trial court was in the slightest degree influenced by the limited extent of defendant's law practice. The judgment is affirmed. We concur: CONREY, P. J.; JAMES, J. (47 Cal. App. 485) VAUGHN v. FEY. (Civ. 3350.) (District Court of Appeal, First District, Division 2, California. May 14, 1920. Rehearing Denied June 11, 1920. Hearing Denied by Supreme Court July 12, 1920.) I. Cancellation of instruments -Suit for "rescission" held synonymous with suit for "annulment." A suit to "rescind" a contract cannot be differentiated from a suit to "annul" the con tract; the two words being used interchange ably. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Annul; Rescission.] 2. Contracts 260-Entire contract may be rescinded for partial failure of consideration. Where a contract is entire, there is a right of rescission thereof for a partial failure of consideration under Civ. Code, § 1689, providing that plaintiff offers to restore to defendants everything of value received under the contract in view of section 1691. 3. Contracts 266(1)—Plaintiff held entitled to rescission only upon return of value received. Where plaintiff has entered into a contract with defendant whereby defendant was to advance money to pay for time and materials for the building of a model of an invention for automatically changing phonograph needles and for a patent thereon, plaintiff held not entitled to rescind on the ground of partial breach without returning or offering to return everything of value received by him. 4. Contracts 266(1) Personal receipt of consideration not essential to duty to return on rescission. In a suit to rescind a contract for the construction of a model and procurement of patent on a device for changing phonograph needles because of partial breach thereof by defendant, that part of the money paid by defendant had not been paid directly to plaintiff, but to the Patent Office and to vendors of materials, did not excuse plaintiff from his obligation to return consideration paid for his benefit. Appeal from Superior Court, City and County of San Francisco; J. W. Mahon, Judge. Suit by J. L. Vaughn against Charles Fey to annul a contract. From a judgment for plaintiff, defendant appeals. Reversed. Maurice R. Carey, of San Francisco, for appellant. Devoto, Richardson & Devoto, of San Francisco, for respondent. LANGDON, P. J. This is an appeal by the defendant from a judgment annulling a contract which had been entered into between the parties hereto. J. L. Vaughn, being the inventor of certain improvements on an automatic phonograph, embodying in particular a new invention for automatically changing the steel needle used for producing the sound from the records, desired to perfect and patent this device, and for this purpose entered into a contract, on June 22, 1916, with Charles Fey, by which contract Fey agreed to advance money to pay for all of the materials required for the building of a model and to furnish shoproom for the building of the same, and to pay to Vaughn $20 each week for a period of 90 days from the date of the agreement, to cover the time Vaughn would be engaged in working upon the model, and also to advance a sufficient sum to cover the cost of securing a patent in the United States upon the said invention, to be applied for when the working model was completed and perfected. In consideration of this agreement by Fey, Vaughn agreed to transfer to Fey a one-half interest in any patent which he might obtain in the United States upon his said invention. This agreement is set out in full in the complaint herein, and it is alleged that the defendant failed and refused to advance the money necessary for the patent. There is no allegation of an offer to restore what the plaintiff received from the defendant under the contract, and the prayer of the complaint is that the contract between the parties be annulled. The defendant's demurrer was overruled. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes used in the construction of the same; that [ 149 Cal. 117, 85 Pac. 305. But it is also he had paid to the plaintiff $100 in weekly stated in said last-mentioned case that the payments of $20 each during the period plain- pleadings contained an allegation that everytiff was engaged upon the work; that he thing of value received under the contract had advanced the sum of $230 for the pur- had been restored by the party rescinding to pose of paying the expense of securing a pat- the other party. Sterling v. Gregory, supra, ent upon the said invention; that thereafter 149 Cal. at page 118, 85 Pac. 305. It is said the Patent Office refused to issue one patent in the case of Fountain v. Semi-Tropic L. & covering all the elements of the invention, W. Co., 99 Cal. 677, 683,1 that in case of rebut insisted upon a "divisional" patent; and scission each party to the contract must rethat plaintiff, without consultation with de- store to the other everything of value refendant, then directed that the money ad- ceived and pay for labor performed for him vanced by the defendant be applied to ob- under the contract, no matter at whose intaining a patent upon the main device, which stance the rescission is made. The decision patent was duly issued. Plaintiff then asked cites, upon this point, numerous California the defendant for an additional $85 to cover the cost of a separate patent upon the device for changing the steel needle. Defendant refused to advance this last-mentioned sum, and the controversy arises over this refusal; it being admitted by the plaintiff that in all other particulars the defendant fully kept and performed all of his obligations under the contract. The defendant and appellant in support of his allegation of full performance urges that the contract calls for only one patent, and that in advancing the money to secure one patent defendant fulfilled his part of the contract. However that may be, the admitted facts show that the defendant has ex pended the sum of $425, in addition to furnishing shoproom, tools, and equipment for the completion of the model, and the testimony of the defendant is that he expended a larger amount. Upon these facts, the court decreed an annulment or rescission of the contract, and made no provision in the decree for a return to the defendant of the money which he had parted with under the contract. [1] The respondent's position is not well taken in seeking to differentiate a suit for the annulment of this contract from a suit for a rescission of a contract. The two words are used interchangeably. Haines v. Stilwell, 5 Cal. Unrep. Cas. 27, 40 Pac. 332; Words and Phases, vol. 7, p. 6139; Bouvier's Law Dictionary; 1 Black on Rescission and Cancellation, p. 1; Webster's New International Dictionary. cases. In the case of Bohall v. Diller, 41 Cal. 532, at pages 535 and 536, it is said: "When a vendee has so failed to perform the cortract that the vendor may elect to treat the contract as rescinded, it is incumbent on the vendor, in order to work that result, to restore to the vendee whatever he has paid on the contract. The plaintiff has failed to allege a repayment or tender of the amount paid by the defendant, at the execution of the contract. He therefore cannot proceed to recover the possession of the premises on the ground of the rescission of the contract." The language of these various decisions but declares the law as announced in sec tion 1691, Civil Code, which expressly provides that rescission, when not accomplished by consent, can be accomplished only by the use on the part of the party rescinding of reasonable diligence to comply with the following rules: **** 2. He must restore to the other party everything of value which he has received from him under the contract; or must offer to restore the same, upon condition that such party shall do likewise, unless the latter is unable or positively refuses to do so." See, also, Hammond v. Wallace, 85 Cal. 522, 531, 532, 24 Pac. 837, 20 Am. St. Rep. 239; Buena Vista Fruit & V. Co. v. Tuohy, 107 Cal. 243, 255, 40 Pac. 386; Hite v. Merc. Trust Co., 156 Cal. 765, 767, 106 Pac. 102; Walsh v. Standart, 174 Cal. 807, 811, 164 Pac. 795; Maginess v. West. Securities Corp., 38 Cal. App. 56, 175 Pac. 277. [2] We have, then, a suit in equity for the [3] It seems plain, therefore, conceding rescission of a contract. Without going into that the defendant has partially breached the question of whether or not the plaintiff his contract, and that this breach entitles it entitled under the contract to demand the plaintiff to rescind the same, that neverfrom the defendant money to defray the ex-theless plaintiff may only do so upon returnpenses of obtaining a second patent, and, ing to the defendant everything of value reconceding for the purpose of a decision of ceived by plaintiff from the defendant. this case, that he was so entitled, and that the defendant failed in that particular to fulfill his contract, it is obvious that defendant's breach constituted only a partial failure of consideration. Where a contract is entire, there is a right of rescission thereof for a partial failure of consideration under section 1689, Civil Code. Sterling v. Gregory, [4] It is idle to urge that, because a part of the money was not paid directly to the plaintiff, but to the Patent Office for the patent, and to the vendors of materials for supplies to be used in completing the model, the plaintiff, therefore, has received nothing which he is obligated to return. The money was paid under the contract for the benefit (190 P.) of the plaintiff and to enable him to per-1667; Banning v. Marleau, 101 Cal. 238, 35 fect his invention, and he accepted the bene- Pac. 772. fits thereof in the way of materials to complete his model and letters patent upon his invention. The situation is not different in principle from what it would have been had the money been paid to plaintiff personally. The judgment is reversed. We concur: NOURSE, J.; BRITTAIN, J. It is ordered that the judgment be modified by striking therefrom that part thereof which provides that defendant recover the described automobile, or, in case delivery thereof cannot be had, that defendant have and recover the sum of $405.90. As so modified, the judgment is affirmed. We concur: SHAW, J.; JAMES, J. (47 Cal. App. 541) IMPERIAL VALLEY AUTO CO. v. TONEY. (Civ. 3099.) (47 Cal. App. 620) BORGMEYER v. SOLOMON. (Civ. 2776.) (District Court of Appeal, Second District, Di- (District Court of Appeal, Second District, Division 1, California. May 18, 1920.) Replevin 103(4)—Judgment for defendant for affirmative relief not sustained by an swer. In action for possession of personalty, in absence of claim in answer for return of property, etc., judgment granting defendant affirmative relief of such return or value cannot be sustained save as a judgment for costs, under Code Civ. Proc. §§ 627, 667. Appeal from Superior Court, Imperial County; R. Y. Williams, Judge. vision 1, California. May 20, 1920. Hearing Denied by Supreme Court July 19, 1920.) 1. Contracts 175(3) Evidence held to show unconditional contract with architect. In an action by an architect for services, evidence held sufficient to sustain the trial court's finding in favor of plaintiff of an unconditional contract. 2. Trial 397 (1)-Specific findings not necessary as to affirmative evidentiary matters alleged in answer. In architect's action for service, where defendant's answer did not set up a conditional Action by the Imperial Valley Auto Com-contract, or make the defense that plaintiff arpany, a copartnership, against Minnie May chitect had not complied with the conditions Toney, administratrix of the estate of C. E. required of him, the affirmative matters allegToney, deceased, substituted for J. C. Harcle ed were merely of an evidentiary nature in conroad, doing business as J. M. Harcleroad & nection with defendant's denial that he conSon. From judgment for defendant, plaintiff tracted with plaintiff architect, and as to such appeals. Affirmed as modified. matters specific findings were not necessary. Chas. L. Childers, of El Centro, for appellant. James W. Glassford, of El Centro, for respondent. CONREY P. J. Action brought by plaintiff to recover possession of personal property. Judgment for defendant, and the plaintiff appeals therefrom. The judgment roll is the only record before us. The judgment, in terms, is that the defendant recover from plaintiff the said personal property, or, if delivery thereof cannot be had, then the defendant have judgment in a stated sum (found to be the value of the property, less a certain allowed credit), and for costs. The answer filed by defendant did not claim a return of the property. Indeed, there is nothing in the pleadings or findings to indicate that the property was delivered to the plaintiff, or was not all the time held in possession of the defendant. Under such circumstances, that part of the judgment which grants to the defendant affirmative relief cannot be sustained, except as a judgment for costs. Code Civ. Proc. §§ 627 and Appeal from Superior Court, Los Angeles County; Russ Avery, Judge. Action by E. G. Borgmeyer against J. B. Solomon. From judgment for plaintiff, defendant appeals. Affirmed. See, also, 178 Pac. 544. Haas & Dunnigan, of Los Angeles, for appellant. Philip Cohen, of Los Angeles (Walter F. McEntire, of Los Angeles, of counsel), for respondent. CONREY, P. J. This action was brought by the plaintiff to recover fees alleged to be due to him from the defendant on a contract for professional services which were rendered by the plaintiff as an architect. It was found by the court that the defendant employed the plaintiff as such architect to prepare plans and specifications for the erection of a hotel building at a described location in the city of Los Angeles, and agreed to pay therefor the sum of $900, which sum was to cover the cost of superintending the erection and construction of the building; also, that the plaintiff prepared plans and specifica For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the prospect that the plaintiff might aid him in procuring a tenant for the proposed building and that such probable tenant had been found. But this testimony was not compell tions, as required by the defendant, and has, negotiations the defendant was influenced by at all times been ready, willing, and able to perform the services of superintending the erection and construction of the said building, but the defendant has refused and still refuses to erect and construct said hotel build-ing upon the court to find that the procuring tug in accordance with the plans and specifications prepared by the plaintiff, and has refused to pay, etc. Judgment was rendered in favor of the plaintiff, and the defendant appeals therefrom. of such tenant entered into and became a part of the actual employment of the architect to prepare the plans and specifications. After those plans and specifications had been completed, the defendant refused to proceed according to those plans and specifications, the plaintiff. No reason or excuse for such refusal appears in the record; although it does appear that the defendant, with the assistance of other architects, erected a hotel building at the proposed location and that Mrs. Verhaar became the tenant thereof. [1] Being satisfied with the court's finding of an unconditional contract, we need not discuss the second point of appellant. which is that, assuming that plaintiff was bound to procure a tenant, he did not comply with that condition. Appellant contends that the findings above mentioned are not sustained by the evidence. | or to avail himself further of the services of In support of his contention that the evidence is not sufficient to establish the contract of employment on the terms stated in the complaint and found by the court, appellant insists that the evidence without conflict shows that the contract of employment was conditioned upon plaintiff procuring a tenant for the contemplated building, acceptable to the defendant. While an examination of the record shows that there was testimony given by the defendant and others tending to prove that the contract of employment was conditional, as above stated, yet such evidence [2] Finally, appellant contends that the was not without conflict. On the contrary, court "failed to find on the material issue there is evidence strongly tending to show raised by the answer that the contract was that the contract was free from such condi- a conditional one," and that the judgment tion. This evidence showed, among other should be reversed, for that reason. The afthings, that the plaintiff was introduced to firmative matters stated in the answer and the defendant by one Seigel, a contractor, to which this argument is directed are, in and that the plaintiff told the defendant fact, not sufficient to present the defense that that, if defendant was willing to take a lit-there was a conditional contract. On the tle less rent than he was proposing to de- contrary, those matters were pleaded only as mand, plaintiff was sure he could get him a a part of the defense that there was no contenant; that very promptly thereafter the tract of employment whatever. The affirmaplaintiff, through an agent, obtained the tive matters in question stated that the plainname of a prospective tenant and informed tiff made a proposition to the defendant condefendant that he had a tenant for the hotel; cerning a lease to be made to a prospective that this tenant, one Mrs. Verhaar, is the tenant to be produced by the plaintiff and same person who afterwards became the ten-proposed that plaintiff act as architect in ant of defendant's building after it had been constructed by the defendant on plans prepared by an architect other than the plaintiff; that, shortly after plaintiff's first conversation with defendant, an interview took place between plaintiff and defendant and Mrs. Verhaar, at which time Mrs. Verhaar stated that she would take the house if the plans suited her, but would not sign the agreement until the plans were completed; that the plaintiff prepared the plans and completed them about four weeks after the time of said interview at which Mrs. Verhaar was present; that during these four weeks the defendant and the contractor were present at the plaintiff's office many times, examining the plans and making suggestions concerning the same; that before the plans were prepared the defendant directed the plaintiff to go ahead with their preparation and promised to pay fees amounting to 3 per cent. of the cost of the proposed building, such cost being estimated at $30,000. The testimony of the making the plans and superintending the construction of such building; and then alleges that no agreement was made with the plaintiff by the defendant for the drafting of plans or specifications of said building, or the supervision of the construction of the same, and that such plans as the plaintiff did prepare were prepared wholly and solely at his own instance, and not on request of defendant or pursuant to any employment by the defendant. It thus appears that the answer did not set up a conditional contract or make the defense that the plaintiff had not complied with the conditions required of him thereby. This being so, the affirmative matters stated were merely of an evidentiary nature in connection with defendant's denial that he made any contract with the plaintiff. As to matters so pleaded in the answer, specific findings were not nec essary. The judgment is affirmed. |