Kiesendahl v. Ganoe, 185 P. 589

Kiesendahl v. Ganoe

185 P. 589 | Or. | 1919

BENNETT, J.

The basis of the decree of the court below as to the respective allowances to the defendants for their professional services appears in an opinion filed by the court, which seems to have been accepted by both sides as findings in the cause, as no other findings appear in the record. We quote from these findings :

“Considering all of the circumstances and making due allowance for the time that the trustees might have reasonably considered that Mrs. Stacy was solvent and that the rent could be obtained from her, and providing amply for all reasonable delays and necessary reductions in rent, I am of the opinion that they lost on this account at least $550, for which they should account in this suit. " * The fees that I consider were reasonable to be allowed for professional services are the following:

“1. In the first case against Mrs. Stacy for rent wherein $388.11 was finally recovered, a fee of $50 in the Circuit Court and $25 for the dismissal of the appeal in the Supreme Court.

*290“2. The divorce suit of Kiesendahl v. Kiesendahl (Ganoe’s portion), $250.

“3. Rose Kiesendahl v. Emil Kiesendahl (replevin' action) $50.

“4. Feary Brothers v. Kiesendahl, $20.

“5. Boyden v. Kiesendahl, $20.

“6. Prettyman v. Kiesendahl, $10.

“7. Burrill matter, $5.

“8. Aplin Restaurant matter, $10.

“9. Settlement of the Jorgens claim, $25.

“10. Drawing'two wills for E. Kiesendahl, $30.

“11. Baker and Ganoe, Trustees, v. Stacy, action for $480 filed December 15, 1915.

“No fees should be allowed, in my opinion, except the foregoing to either trustee, save such as have been heretofore referred to and approved.”

The judge in the court below, heard the evidence in the cause and saw the manner of the witnesses upon the stand, and is in a better position to judge of the weight of their testimony than we can possibly be. We do not see any reason to disturb his findings upon these allowances.

1. We also agree with the court below that the defendants should have acted with more promptness and efficiency in collecting and securing the rents from the property. Under their management the property was running constantly behind, and it was only a question of time when it would have been entirely exhausted and eaten up by expenses. We think the court, under the circumstances, very properly terminated the trust.

We agree also that $550 was a reasonable allowance and estimate of the damages which the plaintiffs’ esate suffered by reason of the failure of the defendants to act more promptly and energetically. In reaching this conclusion we have taken into consideration the fact that the plaintiffs themselves were pulling and hauling, and more or less embarrassing the defendants, in the *291administration of their trust. Nevertheless, we think the defendants were to blame themselves in the matter.

It seems, however, that the court below in its decree overlooked the $250 which it had allowed to Ganoe in its findings as a fee in the divorce proceedings. It seems to have been assumed in the court below and by all the parties that the court should adjudicate the amount of all these fees and claims. Acting upon this assumption we think the defendant Ganoe should have been allowed this $250. It is argued upon behalf of the defendant Ganoe that this allowance should have been larger, but on the whole in view of all the circumstances we think it was an amply sufficient recompense for his services in the divorce matter.

2, 3. We also think that some provision should be made in the decree, in relation to the $300 borrowed by the defendants as 'trustees to pay the taxes and other expenses on the property, and the $350 after-wards borrowed to buy the furniture left in the house by Mrs. Hanson, and to buy the Stacy judgment against her, under which that property might be levied upon and held. We think the defendants acted in good faith in relation to these matters and they ought not to lose the money they put up for the benefit of the estate. It does not appear clearly from the record in the case just how much is still due and outstanding upon these notes, nor does it appear satisfactorily whether the defendants are personally liable thereon. We think the decree should provide that any amount due upon these notes, which has not already been paid out of the trust funds, should be paid or the defendants discharged in some way from liability before plaintiffs can have a reconveyance of the trust properties. The amount due to the defendants for their services ought also to be paid by the plaintiffs before a reconveyance.

*2924. It is urged that there are other creditors who have an interest in this trust, but such creditors have not been made parties, nor have they intervened in any way. It seems that the property of plaintiffs is ample to protect all the rights, of these other creditors, whether the trust is continued or terminated, and when the trust is being constantly operated at a loss, we do not think it should be continued, for the purpose of securing their claims.

The decree of the court below should be modified by adding $250 to the credit of the defendant H. L. Granoe, thereby giving him a judgment against Emil Kiesendahl for $166.49. The decree also should be modified by making the reconveyance of the property, subject tó and upon a satisfaction of the note given by the trustees to the Northwestern Bank for $300, and $350, respectively, or any renewals of the same after allowing for all payments which have been made thereon out of the trust fund.

Under the circumstances of this case we think neither party should recover costs either in this court or in the court below. Modified.

McBride, C. J., and Bean and Johns, JJ., concur.