18 Nev. 120 | Nev. | 1883
Ry the Court,
Appellant recovered judgment against respondent for one thousand five hundred dollars, upon a contract for legal services rendered in the suit of Rose v. Richmond M. Co. The .district court granted a new trial. The appeal is taken from that order.
The testimony in relation to the contract, as given by appellant, is as follows: “Sometime in the latter part of May, 1881, Mr. Probert, the managing agent of the defendant, said to me that he wished to employ me in the Albion-Richmond Cg,ses, to assist in their trial in the district court. * * * He said he was willing to pay a small fee, but would not fix the amount. He told me to consider myself engaged, and Mr. Foley would see me on behalf of the Richmond company and fix my fee. I afterwards saw Mr. Foley. Foley asked me what I would charge to assist in the trial of those cases. I said twenty-five hundred dollars. He said he .could not give it. ‘ Suppose you agree to take one thousand dollars now, and fifteen hundred dollars in case the Richmond company is successful in the district court. ’ I said there are three cases that were tried together on the hearing for injunction, and that the same questions were involved in all. That the chances were that only one case would be tried, and that the other cases would be postponed to await the result of the one trial. That if that was the fact the trial of one would be equivalent to the trial of all. It was then agreed between Foley and myself that if only one case was tried, and the others postponed to await the result of the one tried in the supreme bourt, I was to have the fifteen hundred dollars.”
M. D. Foley, on behalf of respondent, testified as follows: “ I was directed by Mr. Probert to settle the fee to be given Mr. Cole in the Richmond-Albion case. Cole demanded 'twenty-five hundred dollars. I said I could not give it. * * * I told Cole I would pay him one thousand dollars, and fifteen hundred dollars additional in case the Richmond Company was successful. I paid him one thousand dollars. Cole said if the Richmond Company was successful in the district court he did not believe that the Albion Company would try the other cases before Rives,- but would remove them to the circuit court of the United States, and if the Richmond Company won the Rose case, he, Cole, would be entitled to his contingent fee. I said, ‘Yes.’ ”
Rose v. Richmond Co. was tried at the June term, 1881,
At the September term, 1881, of the district court, the other cases were continued for the term, “ by consent,” and at the February term, 1882, were passed until the second setting of the calendar, “by consent.” This action was commenced in November, 1881, and was tried in February, 1882.
Did the court err in granting a new trial ? Respondent seeks to justify this action of the court upon two grounds: Hirst, it claims that it was not successful in Rose v. Richmond Co., in the district court; second, it claims that the other cases were not postponed “to await the result of the one tried in the supreme court.” Neither of these positions can, in our opinion, be legally maintained. It is true that the Richmond Company did not recover all it claimed in its answer, but it recovered all that was of any value. The result of the trial was, as testified to by appellant, ‘ ‘ substantially a success in favor of the Richmond Company. ’ ’ The judgment “gave to the Richmond Company all the mining ground that was of any value which was in controversy in these three cases.” The president of respondent testified that “the Richmond Company was only partially successful in the Rose case, ’ ’ evidently meaning that it was only partially successful because it did not gain all
The other point is equally without merit. The other cases were not tried; they were continued. These facts are not denied. Why were they continued ?
Appellant testified that at the June term, 1881, ££wheu the two other cases were reached and called on the calendar, Mr. Wren, who is the president and attorney for the defendant, said to me in court, £ Had not we better continue the two cases until the Rose Case is decided in the supreme court?’ I said yes, and thereupon these cases were con
Upon this testimony he argues that “the'* fact that no order of court was made continuing the two cases to await the decision of the supreme court, shows that if such a suggestion was ever made by counsel it was never acted upon, for some reason. To continue the two cases to await the decision of the supreme court required the consent of counsel for Rose et al., as well as counsel for respondent, and' it does not appear that consent was ever obtained.” This is simply begging the real question at issue. Were the cases continued? Tes. What was the reason which induced counsel on both sides to “consent” to the postponement of these cases? None is given by respondent. In the absence, of any reason given by respondent, do not the facts of this case furnish an answer to the question ? Was not the postponement of the two cases the natural course that would be pursued in the light of the history of the Albion-Richmoud litigation ? But one ease would be tried. This would determine the questions that would necessarily control the judgments and decisions in the other cases. No benefit would accrue to either party by the trial of these cases until the one tried was finally determined. The contract was that if but one case was tried appellant would be entitled to his additional fee. This was the plain understanding and
Upon the undisputed testimony in this case appellant was to have one thousand five hundred dollars as an additional fee if the Richmond Company was successful in the district court, in th'e Rose-Richmond Case, (that being the case tried,) and the other cases were continued to await the result of that case in the appellate court. The Richmond Company was successful. The other cases were continued. The verdict of the jury was in accordance with the evidence and the law. The court erred in setting it aside.
The order of the district court granting a new trial is reversed.