No. 4911 | Wash. | Jun 30, 1904
Appellant brought this suit against respondent to recover alleged damages. The complaint, in substance, avers, that respondent is an attorney at law; that he maliciously, and without reasonable or proper cause, stirred up one Erickson, the latter being insolvent and in indigent circumstances, to prosecute an action against appellant for alleged malpractice as a physician
“It is hereby agreed by and between John 0. Hogan and John Erickson as follows: That the said Hogan is to act as attorney for said Erickson in the matter of bringing suit against Paul Smits, to recover for negligent and unskillful setting of fractured finger, and to prosecute said case to final judgment in the superior court of Chehalis county, and pay the necessary court disbursements in prosecuting said case.
“And for said services the said Erickson agrees to give him one-third of the amount recovered in said action as full compensation. And neither of the parties hereto shall settle said ease without the consent of the other.”
It is alleged, that the suit for malpractice was prosecuted by respondent, as attorney for said Erickson, in pursuance of the above agreement; that the same resulted in a judgment against Erickson for costs, and that he should take nothing by his action. Appellant avers damages to himself, for necessary attorney’s fees and expenses incurred in the former suit, and demands recovery from respondent. Issue was joined upon the complaint. A trial was had before the court, and a verdict was returned for respondent. Appellant moved for a new trial, which was denied. Judgment was entered in accordance with the verdict, and this appeal was taken.
The alleged errors assigned as stated in the brief are, (1) “in the giving of certain instructions,” and (2) “in refusing to give certain instructions.” The second ground of error, as stated above, is waived in the brief, the first ■only being discussed. The general and indefinite assignment as to the instructions given is of no practical assistance to the court, and we are compelled to resort to the general discussion in the brief to discover what objections are intended to be urged. Erom the general discussion,
We understand from appellant’s argument, however, that he contends now that, by reason of the written agreement above set forth, the action is based upon a claim of damages for champerty or maintenance. It is insisted that the agreement was champertous, and that appellant is entitled to recover, even though malice in fact is not shown. It is doubtful if the doctrine of champerty was ever in force in this state, as a part of the common law, under the authority of decision by American courts.
“Nor is the contract void as being’ contrary to the policy of any law of this state in regard to maintenance. That offense was created by statute in England in early times, in order to prevent great and powerful persons from enlisting in behalf of one party in a lawsuit, by which the opposite and feeble party would be oppressed and prevented from obtaining justice. It has been said by English judges that under the enlightened and impartial administration of justice in later times the object of the law had ceased and the law itself had become nearly obsolete. It has been said in America that the law against maintenance was peculiar to early English society, and inapplicable to American society, and, therefore, that it would not exist here unless by statute enacted here. At an early day in the history of the State of New York a statute was enacted against maintenance. At the revision of the laws of that State in 1880, the revisors, in a report to the Legislature, say: Tt is proposed to abolish the law of maintenance and to qualify that of champerty, by permitting mortgages of lands in dispute to
In Courtright v. Burnes, 13 F. 317" court="None" date_filed="1881-11-15" href="https://app.midpage.ai/document/courtright-v-burnes-8309622?utm_source=webapp" opinion_id="8309622">13 Fed. 317, 320, the court observed :
“The tendency in the courts of this country is stronger in the direction of relaxing the common-law doctrine concerning champerty and maintenance, so as to permit greater liberty of contracting between attorney and client than was formerly allowed, and this for the reason that the peculiar condition of society which gave rise to the doctrine has in a great measure passed away. In some of the states the common-law rule is altogether repudiated, and it is held that no such contract is now invalid unless it contravenes some existing statute of the state.”
If, however, the doctrine of champerty ever was in force in this state, then, as far as it relates to the mode of compensation between attorney and client, it must have been repealed by our statute as found in § 5165, Bal. Code, which is as follows:
“The measure and mode of compensation of attorneys and counselors shall be left to the agreement, express or implied, of the parties. . .”
There is nothing in the above statute which prevents the making of the contract set out above, but the parties were left to make such contract as to the compensation of the attorney, if they saw fit to do so. In Utah it has been held that a statute of practically the same words as our" own, quoted above, has modified the common law rule as to champertous contracts, so as to leave client and attorney free to contract as they choose with reference to the attorney’s compensation. Croco v. Oregon etc. R. Co., 18 Utah 311" court="Utah" date_filed="1898-11-11" href="https://app.midpage.ai/document/croco-v-oregon-short-line-railroad-8654283?utm_source=webapp" opinion_id="8654283">18 Utah 311, 54 Pac. 985, 44 L. R. A. 285. The same has been held in Michigan. Wildey v. Crane, 63 Mich. 720" court="Mich." date_filed="1886-11-17" href="https://app.midpage.ai/document/wildey-v-crane-7932868?utm_source=webapp" opinion_id="7932868">63 Mich. 720, 30 N. W. 327.
Under either view of the case at bar, therefore, the contract mentioned was not an illegal one, for, if the rule as to champerty ever prevailed here, it has been modified by our statute. If it should be said that the statute of T9 03, page 68, Session Laws of that year, upon the subject of barratry, beárs upon the subject matter of this contract, it is sufficient to say that said statute was not in force when the contract was made. The contract not being illegal in itself, it was proper for the court, under the issues, to instruct the jury that appellant should show malice and want of reasonable or probable cause before he could recover, for
Respondent insists that, even if this contract came within the rule as to champerty, still appellant could not recover of respondent, and counsel assert in respondent’s brief that they have been unable to find, in the whole range of American cases, a single case where an attorney has been held to respond in damages to the opposite party because of having made a champertous agreement with his client. It is true appellant has not cited such cases, but that question we do not now decide, for the reason, as we have seen, that no champertous contract is involved.
The judgment is affirmed.
Fullerton, C. J., and Anders, Mount, and Dunbar, JJ., concur.