88 Wash. 125 | Wash. | 1915
This is an action for the collection of an attorney’s fee. The sequence of events leading up to this action may be found in three decisions of this court. State ex rel. Bogle v. Superior Court, 63 Wash. 96, 114 Pac. 905; In re Jeffs’ Estate, 73 Wash. 212, 131 Pac. 847, and Atwood v. Sicade, 73 Wash. 219, 131 Pac. 850. Reference is made to those decisions for the facts. In addition to this, we find it necessary to add only the following: After the granting of the writ prohibiting the superior court of King county from fixing the attorney’s fees of Hart and Allen, plaintiffs here, in the first of the above cases, Mary Jeffs was declared an incompetent and guardians for her were appointed by the superior court. These guardians, on their own motion, were substituted as parties plaintiff in the suit of Jeffs v. Sicade, known on our records as the Atwood case. The trastees under the will of Richard Jeffs were made parties defendant, and also Hart and Allen, plaintiffs herein. Hart and Allen, by cross-complaint, set up their contract for attorney’s fees with Mary Jeffs and also the settlement of February 14, 1911, resulting in the agreement between Henry Sicade and wife, parties of the first part, Mary Jeffs as party of the second part, and the trustees of the Jeffs Orphans’ Home, created by the will of Richard Jeffs, as
“The suit now pending in behalf of the party of the second part against the parties of the first part in the superior court of King county, state of Washington, shall be dismissed without costs to either party. The attorneys for the plaintiff having an agreement with the party of the second part for an attorney’s fee equal to one-half of the value of the property which they might recover in this action, it is agreed that, whatever attorney’s fees are allowed or established in their favor for the party of the second part in such suit, shall be paid by the said parties of the third part as such trustees.”
Upon the covenants of this agreement, Hart and Allen, the plaintiffs here, in their cross-complaint prayed judgment for attorney’s fees equal to one-half in value of the property by the three party agreement to be conveyed by the Sicades to the trustees. This cross-complaint was put in issue by answers of the trustees and the new plaintiffs in that action. Thereafter Mary Jeffs died and her executors, Atwood and Bogle, were substituted as plaintiffs. The case then proceeded to trial, resulting in a judgment against Hart and Allen, which on appeal to this court was affirmed. Atwood v. Sicade, 73 Wash. 219, 131 Pac. 850. Thereafter Hart and Allen brought this suit against the trustees, seeking to recover on a quantum meruit for services rendered in bringing the original action of Mary Jeffs v. Sicade, preparing for trial, and finally effecting the settlement of February 14, 1911, resulting in the three party agreement and in the conveyance in pursuance thereof by Sicade and wife to the trustees of three-fourths of the property which Mary Jeffs had conveyed to them. The action is, in sub
I. The main contention of the appellants is that the decision of this court in the Atwood case (73 Wash. 219) is a bar to this action, in that that decision is res judicata of the plaintiffs’ right to recover any attorney’s fees, and that in electing, to sue on their contract with Mary Jeffs rather than for a quantum meruit, the plaintiffs here in that action estopped themselves to maintain this action. The real controversy in the Atwood case, so far as concerns the attorneys’ .fees, was whether respondents here should be allowed to recover on the basis of their contract with Mary Jeffs. In their cross-complaint in that action, they set up and asked relief on that contract. No evidence was taken as to the value of the services and the question of quantum meruit was not tried. Hart and Allen in that case apparently proceeded upon the theory that they had the right to contest the question of the validity of their contract with Mary Jeffs and their right to recover thereunder to the court of last resort. They now contend that, having done so, they are not estopped to maintain an action on the three party agreement, as an agreement made for their benefit, to recover the reasonable value of their services. They contend that this right was reserved to them by the decisions of this court, both in the prohibition suit (63 Wash. 96) and in the Atwood case (73 Wash. 219). In the first mentioned decision, touching the three party agreement, we said:
*130 “The language relied upon by the plaintiff’s attorneys and the respondent in support of jurisdiction is that, ‘it is agreed that, whatever attorney’s fees are allowed or established in their favor for the party of the second part (Mary Jeffs) in such suit, shall be paid by the said parties of the third part as such trustees.’ This language * does not mean that the attorney’s fees are to be established in the Jeffs suit. Clearly, however, it does mean that the trustees will pay the attorney’s fees allowed them for their services to their client Mary Jeffs in her suit against the Sicades, when determined in an action brought for that purpose.”
We shall presently advert to our decision in the Atwood case. On the question of res judicata and estoppel, the appellants mainly rely on the case of Krug v. Hendricks, 54 Wash. 209, 102 Pac. 1049. That case is’ not apposite. There it was held that both actions were brought upon express contracts, the first upon an express contract to pay a five per cent commission on a real estate sale, the second on an express promise to pay the reasonable value of the service. The actions were both against the same parties defendant. Both the actions here were also based upon express promises, but there is this vital difference between the cases here and those involved in the Krug case: Here the action, by cross-complaint in the Atwood case, was primarily against Mary Jeffs on the original contract with her. The second action, the one now before us, was against the trustees on the three party agreement, and the Mary Jeffs contract was merely set up by way of inducement. In the first action, the Atwood case, the Mary Jeffs contract was held invalid. In that case the contract with the trustees, the three party agreement, was set up as showing an assumption by the trustees of whatever might be recqvered on the contract with Mary Jeffs. There might be some force in the claim that the disposal of the Mary Jeffs contract as invalid was a final disposition of the three party agreement were it not for the fact that in the Atwood case this court expressly and unequivocally in
“We have already said all we care to say about this contract in the previous case; we do not regard it as the contract of one competent to contract. These attorneys did, however, perform valuable services in the commencement of the action against Sicade and in preparing it for trial. It does not seem to us problematical what the outcome of that suit would have been had it proceeded to trial. No court, under the circumstances, would have sustained the Sicade deed. The services of Mr. Allen were also valuable in obtaining the settlement from Sicade upon the basis of a re-conveyance of three-fourths of the property instead of one-half as first proposed. That settlement is not before us for review as to the amount of property obtained from Sicade, and hence it is not proper for us to here speak our mind concerning it.”
Speaking of the three party agreement, we said:
“The trustees, however, there obligated themselves to pay these attorneys such a sum as should be allowed them in some proceedings brought to determine that allowance, and this obligation must be kept. That sum should be a reasonable sum, and fully commensurate with the value of the services performed. What that sum shall be is not for us in the first instance to determine. We do not, however, believe it is the sum of $43,125, as here demanded.”
This is a direct recognition of the right of the respondents as attorneys to sue upon the three party agreement as a primary undertaking on the part of the trustees to pay the reasonable value of the services rendered to Mary Jeffs, regardless of the fact that the contract with her was invalid because of her incompetency to contract. The claim was made by the trustees in their brief on the appeal in the Atwood case that the judgment in that case was a bar to any recovery on the quantum meruit. In view of that fact it will not do to say that what was said of the three party agreement was mere dictum. That agreement was then directly before us under a claim that by it the trustees assumed the
This court is' also committed to the doctrine that, where one person for a valuable consideration makes a promise to another to pay the debt of that other to a third person, such third person may maintain an action in his own name upon the promise and against the promisor alone. Johnson v. Shuey, 40 Wash. 22, 82 Pac. 123; Nordby v. Winsor, 24 Wash. 535, 64 Pac. 726; Dimmick v. Collins, 24 Wash. 78, 63 Pac. 1101; Gilmore v. Skookum Box Factory, 20 Wash. 703, 56 Pac. 934; Ordway v. Downey, 18 Wash. 412, 51 Pac. 1047, 52 Pac. 228, 63 Am. St. 892; Don Yook v. Washington Mill Co., 16 Wash. 459, 47 Pac. 964; Solicitors Loan & Trust Co. v. Robins, 14 Wash. 507, 45 Pac. 39; Kelley v. Greenough, 9 Wash. 659, 38 Pac. 158.
II. The appellants contend that, even assuming that the respondents might in a proper case maintain an action on the three party agreement as a promise made for the benefit of a third person, nevertheless this action cannot be maintained because the trustees received nothing by reason of the three party agreement and that the consideration for their promise touching the attorney’s fees has failed. It is true that the identical deed then made by the Sicades to the .trustees in settlement of the suit to set aside the deed of Mary Jeffs to Sicade was never recorded nor itself made the basis of the trustees’ title. But it is also true that Sicade and wife did make another deed conveying even more property than was contained in that deed. The fact that they more than met the original agreement is a matter of which the trustees can hardly complain. By this second deed they conveyed the property to the executors of Mary Jeffs’ estate instead of the trustees. This deed effectually disposed of the Sicade suit, so far as the Sicades’ claim to the property conveyed was concerned. This property was listed as a part of her estate, and by her will passed to the trustees. The dominant fact remains that the three party agreement was fully carried out by the Sicades, thus divesting them of the title to the property in a manner that made it certain it would go to the trustees. It is true that the suit of Mary Jeffs v. Sicade was not dismissed but thereafter persisted as the Atwood case. The fact that further litigation was had touching the attorney’s fees was a thing which was con
It is further claimed that, by the three party agreement, the amount which would go to the trustees was not increased, but only the amount of the respondents’ attorney’s fees. This is based upon the circumstance that, prior to that agreement, the Sicades had agreed to convey to the trustees one-half of the property which they had received from Mary Jeffs, with the understanding that they were to pay one-half of respondents’ attorney’s fees and the trustees the other half, and that by the three party agreement, through the respondents’ efforts, Mary Jeffs consented that the Sicades should convey three-fourths of the property, the trustees to assume all of the respondents’ fees. It is argued that this, under their contract with Mary Jeffs for one-half of any recovery from the Sicades as an attorney’s fee, merely increased their fee and, though it also increased the amount of property to be received by the trustees, it increased the fee which the trustees assumed to pay in the same amount. This argument loses all force when it is remembered that the trustees have throughout contended that they did not assume the attorney’s fee contract as made with Mrs. Jeffs, but only assumed, if
III. The further contention, that this action cannot be maintained against the trustees because no claim was ever filed against the estate of Mary Jeffs, is answered by what we have said touching the question of res judicata. This suit was brought against the trustees on the undertaking by the trustees in the three party agreement to pay the reasonable value of respondents’ services. This was, in effect, construed by us in the Atwood case as not dependent on the enforcement of the attorney’s fee contract against Mary Jeffs, but as an independent obligation on the part of the trustees to pay such sum as should be allowed as reasonable and commensurate with the services performed. We there held that the Mary Jeffs contract could not be enforced because made by one not competent to contract, but in the same connection we held that the trustees, by the three party agreement, obligated themselves to pay the reasonable value of the services actually performed.
IV. It is asserted that this suit cannot be maintained because the trustees, as trustees under the will of Richard Jeffs, had no power to bind his estate by the three party agreement. This is beside the question. The judgment for the attorney’s fees, it may be assumed, cannot be enforced against the Richard Jeffs property. It can, however, be enforced against the trustees to the extent that they hold property coming from the Mary Jeffs estate, through reconveyance from the Sicades. Until it appears that they hold no such property, the question now advanced cannot arise.
V. A long hypothetical question was propounded to an attorney who was called by the respondents to testify con
“Mr. Graves: I object to that because it is not a question founded upon the evidence in this case. The Court: The objection will be sustained. Mr. McCord: In what particulars your Honor? The Court: There is a statement there that it was one of extreme doubt. Q. Well, eliminating from the question that I have stated to you, the question as to whether or not the result of the litigation and the result of the suit that was brought by Allen and Hart was doubtful; assuming that it was not doubtful? Mr. Graves: I object to it on the further ground that it does not appear that they by their efforts acquired any property which was returned to Mary Jeffs or her estate. The Court: The objection will be overruled. You may answer the question.”
The appellants now raise many objections to the hypothetical question, but we are of the opinion that the foregoing colloquy limits the objection actually made to the single ground that it does not appear that, by the respondents’ efforts, any property was restored to Mary Jeffs or her estate. The objection, as we have seen, in the light of the whole record, was not well taken. If counsel had intended to raise the vai’ious objections which they now seek to assert, it would have been only fair to both court and counsel to have pointed them out at the time.
VI. Complaint is made of certain misconduct of one of the respondents occurring during the cross-examination of the other respondent as a witness on their behalf. We find it unnecessary to state in detail the circumstances. The appellants made no request that the court instruct the jury to disregard the objectionable remarks and the objectionable evidence which was offered in connection therewith and ruled out. No motion was made to discharge the jury from further consideration of the ease, nor was any claim then made that the misconduct was so flagrant as not to be cured by such an instruction. Under these circumstances, we think the appellants are in no position now to insist upon that
“Whether a new trial should be granted upon this ground alone is largely within the discretion of the trial court. The exercise of that discretion will not be disturbed except in cases of clear abuse. Snider v. Washington Water Power Co., 66 Wash. 598, 120 Pac. 88; Taylor v. Spokane, Portland & Seattle R. Co., 67 Wash. 96, 120 Pac. 889. We think there was no such abuse of discretion in this case as would warrant a reversal.”
See, also, Cranford v. O’Shea, 75 Wash. 33, 134 Pac. 486; Keough v. Seattle Elec. Co., 71 Wash. 466, 128 Pac. 1068; Vowell v. Issaquah Coal Co., 31 Wash. 103, 71 Pac. 725.
VII. Over the objection of appellants, the respondents were permitted to testify to certain transactions leading up to the making of their contract with Mary Jeffs. It is contended that this evidence was improper and should have been excluded under the provisions of Rem. & Bal. Code, § 1211 (P. C. 81 § 1027). It seems to us that this statute has no application. The respondents in this action were suing the trustees on their own undertaking embodied in the three party agreement. The executors of the estate of Mary Jeffs were not parties to this action. Respondents were not suing on their contract with her, neither were they seeking to enforce any direct or implied promise made by her. It was, of course, necessary to show what services the respondents had actually rendered, in order to prove the value of those services. Some reference to the transactions had with Mary Jeffs could hardly have been avoided. The agreement of February 14th, upon which this action was based, was an agreement by which the appellants obligated themselves to pay
It is also claimed that other testimony relative to the time and- expenses of the respondents in an ancillary suit to en j oin Sicade from harassing Mary Jeffs was improperly admitted. We think, however, that, inasmuch as this was a necessary part of the service performed looking to the divesting of Sicade of the title to the property, this evidence was properly admitted.
One general observation seems called for touching all of the questions relating to the admission of evidence. The only effect that the evidence complained of could have had was to augment the recovery. No claim is made that the recovery is excessive, provided any recovery was permissible. Upon the whole record, we find no error justifying a reversal.
Judgment is affirmed.
Moeeis, C. J., Chadwick, and Ftjlleeton, JJ., concur.
