These appeals were heard by the district court of appeal of the second appellate district. Upon petition a hearing before this court was ordered for the reason that, while a majority of the justices of this court fully agreed with the learned district court of appeal in the dis- mission by that court of the denial of defendant’s motion for a new trial, some doubt was entertained regarding the conclusions reached in the decision of the appeal from the" judgment. After a hearing before this court, and further study of the case, we still agree with our brethren of the district court upon the matter of the appeal from the order denying the motion for a new trial, and we hereby adopt the following part of the opinion prepared by Mr. Justice Victor E. Shaw :

In analyzing the appeal from the judgment we shall first examine the special interrogatories submitted to and answered by the jury. Regarding the agreement alleged in the first count of the complaint that Foster was to receive twenty per cent of any recovery, the jurors found that there was no such contract. The second interrogatory was as follows:

The learned district court of appeal interpreted the fourth question and the answer thereto to mean that defendant in fixing plaintiff’s fee at one thousand five hundred dollars did not act in good faith m that he did not seek the counsel of qualified advisers, and interpreting the contract found by the answer to the second interrogatory as one not requiring that defendant should act upon such advice, held that plaintiff was bound by the offer of one thousand five hundred dollars and ordered the reduction of the amount of the judgment accordingly to $88, the difference between one thousand five hundred dollars and $1412, the sum which the court found that plaintiff owed the defendant on his counterclaim. We are unable to agree with this interpretation of the jury’s finding. If we concede that the latter part of the interrogatory contains matter not pertinent to the issues involved, the fact still remains that the question is compound. It contains really three parts: (1) Did the defendant act in good faith in fixing the fee at one thousand five hundred dollars? (2) Did he act after full consideration? (3) Did he act upon proper advice? These parts are connected by the conjunction “and”; therefore each is of equal rank. Answers to the two last parts may be of no moment, but the general answer to the whole question is equivalent to a finding -by the jury that in fixing the fee at one thousand five hundred dollars the defendant acted in bad faith. It is argued that the power to name the compensation was plenary, and that the matter of good or bad faith was not involved. In other words, that the defendant was empowered, under the contract, arbitrarily to name a fee without any reference to the bona fides. But the second finding of the jury establishes a contract that the charge should be reasonable. Even if the language of that finding might be interpreted as compelling reasonable conduct on the part of the attorney only, the pleadings on which the issue was submitted to the jury forbid such interpretation. The allegation of defendant (which under our system of pleading was deemed to be denied without written replication) was substantially as follows: “Said plaintiff further at said time agreed that, if this defendant should employ plaintiff to bring suit against the said Spellacy, and if said plaintiff should bring such action against said Spellacy, he, the said plaintiff herein, would only require this defendant to pay him, plaintiff herein; a reasonable fee, and that the amount of that fee, and what would be a reasonable fee, would be left entirely with this defendant to determine; and that the said plaintiff herein, before and at the time of accepting the said employment from this defendant, and' before bringing the said suit, promised and agreed to leave the amount of his said fee to be fixed by this defendant, and this defendant alleges that after carefully considering the matter, and being advised in the premises, he fixed the sum of one thousand five hundred dollars as a reasonable fee and compensation to the said plaintiff, and as a full and reasonable payment for all the work performed by the said plaintiff. ’ ’ Admittedly, therefore, the defendant was bound to fix a reasonable fee. He named an unreasonable sum according to the special verdict of the jury, and in the state of the record we are bound to assume that the finding was amply supported by the evidence. Counsel for defendant argue that there was no pleading of fraud or bad faith—that fraud must be alleged and must be clearly established before it is of any avail. Whatever may be the rule in other states, this court is committed to the doctrine that bad faith may be established in an action under the presumed denial of new matter set up by way of answer or counterclaim. In Williams v. Dennison, 94 Cal. 540 , [ 29 Pac. 946 ], the action was for money had and received. The statute of limitations was pleaded in the answer and the court held that any proper evidence was admissible to meet and overcome the defense, including proof of fraud on the part of the defendant which would take the case out of the statute of limitations. (See, also, Code Civ. Proc., see. 462; Curtiss v. Sprague, 49 Cal. 301 ; Colton Land & Water Co. v. Raynor, 57 Cal. 588 ; Sterling v. Smith, 97 Cal. 343, 346 , [ 32 Pac. 320 ] ; Moore v. Copp, 119 Cal. 429, 433 , [ 51 Pac. 630 ]; Brooks v. Johnson, 122 Cal. 569, 570 , [ 55 Pac. 423 ]; Clarke v. Fast, 128 Cal. 422, 425 , [ 61 Pac. 72 ]; Lauricclla v. Lauricella, 161 Cal. 61, 70 , [ 118 Pac. 430 ].) It is not necessary to consult the decisions of other states upon this matter. Those of our own state are sufficient.

Both litigants cite Tennant v. Fawcett, 94 Tex. 112 , [ 58 S. W. 824 ], defendant in support of the rule that a pleading of fraud is necessary even under a statute similar to our section 462 of the Code of Civil Procedure, and plaintiff upon the contention that good faith is an element to be considered in contracts of this sort. Upon the first matter our decisions are sufficient. Regarding the second point we think it clear that the doctrine of that case as well as that of Butler v. Winona Mill Co., 28 Minn. 205 , [ 41 Am. Rep. 277 , 9 N. W. 697 ]; Walsh v. Board of Trustees, 17 Mont. 413 , [ 43 Pac. 180 ]; Taylor v. Brewer, 1 M. & S. 290, [105 Eng. Reprint, 108], and others of like nature is that, as Lord Ellenborough said in the opinion in the ease last cited, one may throw himself “upon the mercy of those with -whom he has contracted.” But even when such a contract has been made, the person having the power to fix the fee may not act fraudulently. Here the reasonableness of the proffered compensation was an element of the contract as pleaded and proved and found by the jury.

The judgment and order are affirmed.

Shaw, J., Henshaw, J., and Angellotti, C. J., concurred. Rehearing denied.