Downer Corp. v. Union Paving Co.

I dissent. Unless speeiálly provided for by statute attorneys’ fees are an element of damages ancillary to a cause of action to enforce some contractual right. (Genis v. Krasne, 47 Cal.2d 241 [302 P.2d 289].) Like any other element of damages they must be pleaded when the party claiming the same first institutes court action to enforce his claims. (Genis v. Krasne, supra.) The right to recover attorneys ’ fees depends upon the contract in the particular ease and whether or not the contractual conditions antecedent to a valid claim for attorneys’ fees are present is a proper issue to be…