Appeal from a judgment of the Superior Court of Alameda County, and from, an order denying a new trial.
The facts are stated in the opinion of Mr. Commissioner Vanclief.
Assignment in Trust — Trustee as Beneficiary — Assignor’s Attorney — Trust for Fees and Disbursements. — Where the owner of a note, upon which a suit is brought against the makers, assigns it in trust, together with all the avails of the action, and certain other claims to secure certain specified obligations, “first deducting and paying out of any money that may be realized out of said claims all charges for costs and attorney’s fees and charges, to provide for the payment of which this assignment is also made, ” the fact that the assignee is one of the beneficiaries named does not prevent the assignment from creating a trust, which may be enforced in favor of the attorney of the assignor, for his fees and disbursements for costs in the suit on which the note was made.
Id. — Enforcement of Trust against Administrator of Trustee. — Such trust devolves upon the administrator of the trustee, and may be enforced directly against him by the assignor’s attorney, as an equitable cause of action.
Id. — Promise for Benefit of Another—Executed Consideration — Agreement by Assignee to Pay Attorney’s Fees of Assignor. — The agreement by the assignee to pay the fees of the assignor’s attorney_ being based upon an executed consideration, may be enforced by the attorney, as a promise made for his benefit, by an action at law against the assignee.
Id. — Estates of Decedents — Presentation of Claims — Pleading. — The cause of action in favor of the attorney of the assignor, against the administrator of the assignee, is not governed by section 1493 of the Code of Civil Procedure; and if the administrator pleads the statute of limitation, the cause of action against him is not affected by a finding that the cause of action against the deceased assignor was barred by that section, however it might affect the estate of the assignor.
Id. — Separate Relief against One of Several Defendants — Prayer of Complaint. — The relief to which the plaintiff is entitled against any one of the defendants is not limited by his prayer for relief against other defendants; but he is entitled to any relief justified by the facts alleged in t-lie complaint, if proved or admitted.
Id. — Disqualification of Plaintiff as Witness — Claim against Estate. — The plaintiff in such action cannot testify against the administratrix of the deceased assignor to an agreement made between the assignor, the assignee, and the plaintiff, to the effect that the plaintiff should continue to prosecute the suit upon the assigned note as attorney for the assignor, and be paid a reasonable fee out of the proceeds of the judgment, if collected, nor can he testify to any matters of fact occurring before the death of the assignor.
