4 Wash. 670 | Wash. | 1892
Although appellant claims that the court below committed several reversible errors during the course of the trial of this cause, the argument of counsel was principally directed to the point that the court erred in overruling his motion for a new trial on the ground that the verdict was not sustained by the evidence. "While we would not be disposed to disturb the verdict of the jury in any case where there is a substantial conflict in the testimony upon a material issue, a careful examination of the evidence in this case leads us to the conclusion that this judgment ought to be reversed.
It appears from the record, that during the years 1889 and 1890, the plaintiff was engaged inreal estate, insurance and general brokerage business, in the city of Ellensburgh, and that, during the same time, the defendant was an attorney at law, and was the owner of valuable buildings, which he leased for various purposes. Up to about October, 1890, these parties were upon terms of intimate friendship with each other, but, at that time, their friendly relations seem to have been somewhat abruptly terminated. During the period of time involved in this controversy Cadwell insured his property in companies represented by Gross, and the former testifies that in consideration of placing his insurance with Gross the latter performed the services for which he claims to recover in this action, and that it was expressly understood on his part, that no pecuniary consideration was to be paid, and no charge was to be made therefor. On the other hand, Gross claims that he was specially employed by Cadwell to collect rents, look after tenants, procure stay bonds in actions in court, and to assist;in settling difficulties with contractors and others, and that there was no understanding that he was not to make any charge for his services, and that a great portion of his time was employed in these matters. It further appears from
Again, it is a significant fact that after all these various and diversified services had been rendered, and all business relations between the parties had been broken olf, respondent presented a claim against appellant for the sum of only $37.50, and that was a balance for insurance, and is not included in the amount now claimed. Not a word was said at that time about any claim for services, nor was such a claim ever made or suggested to appellant until the
In brief, we think the evidence in this case, as a whole, conclusively shows that these parties were in the habit of mutually receiving and rendering favors, with no present thought of making pecuniary charges therefor, and in such cases no recovery can be had by either party. Potter v. Carpenter, 76 N. Y. 157. See also Dunlap v. Allen, 90 Ill. 108; Jared v. Vanvleet, 13 Ill. App. 334. And it is of no moment that the services rendered by respondent may have been more valuable than those received, for that is entirely immaterial under the circumstances. Appellant can make no charge against respondent for professional services, and, on the other hand, it would violate every sense of justice to compel him to pay for services for which the respondent made no charge, and which he never would have thought of making an account of if his relations with appellant had not changed. Gadwell may have done wrong in refusing to pay the balance due for insurance, but that is no reason why he should be compelled to pay for every service theretofore rendered by Gross, and of which he had hitherto made no note.
The judgment of the court below is reversed, and the cause remanded for further proceedings.
Hoyt, Dunbar, Scott, and Stiles, JJ., concur.