162 P. 258 | Or. | 1917
delivered the opinion of the court.
It is maintained by defendants’ counsel that an error was committed in denying their request for a directed verdict in their favor, interposed when the case was submitted, on the ground that the plaintiffs violated the terms of the contract sued upon, and for that reason they were not entitled to any compensation for the services which they performed. It appears from a transcript of the evidence that the defendants’ uncle, S. M. Beard, died testate in Multnomah County, Oregon, January 10, 1910, having devised and bequeathed all his property equally to them, their mother, Elizabeth Beard, their brother, A. Edgar Beard, and their sister, Carrie E. Cadwell, subject,
The plaintiffs, having obtained these favorable decisions, concluded it was proper to bring about, if possible, a settlement of the remaining controverted questions. For that purpose Mr. McCamant conferred with E. B. Seabrook, an attorney for the adverse party, to whom was submitted tentative terms upon which it was believed a compromise could be effected. The latter having consented to co-operate in an attempt
“While the other side is to have the choice and to give you what they see fit aggregating the figures above named, they really have but little choice in the matter, as I can think of only four schemes by which the property can be divided. I have figured on it with a good deal of care and the allowance to you, if this settlement goes through, will be substantially one or other of the following four schedules of property: (1) Eiver Front, $15,000; Slumann Hill, $1,000; Battle Ground, $8,000; Meadow Glade, $2,000; Washington Street House, $6,000; Broadway House, $6,000; Tabor Heights, $2,000; Orchard Heights, $750. Total, $40,-750.00.”
Each of the other schedules contained the first three parcels of land so mentioned and other tracts. In his reply of July 26, 1913, Eoscoe wrote Mr. McCamant in part as follows:
“After carefully considering your proposition I am constrained to say that I will agree to a settlement on the terms as outlined in your letter. I do this reluctantly.”
An excerpt from another letter written by Eoscoe July 30, 1913, is as follows:
“To be perfectly candid, Mr. McCamant, I shall feel rather relieved if the settlement does fail. Since agreeing to your proposition I feel as if I were shirking a plain duty. ’ ’
Soon thereafter Mr. Seabrook notified plaintiffs that Mrs. Elizabeth Beard and Mrs. Cadwell acquiesced in the proposal and that Edgar had reluctantly assented thereto. The terms of the settlement were then left with E. A. Leiter, one of Edgar’s attorneys, to work out the details. Having thus substantially concluded* the agreement, the defendants subscribed their names, to a writing prepared for them which reads:
*526 , “July 30th, 1913.
“Mr. Wallace McCamant,
“611 Electric Building, Portland, Oregon.
‘ ‘Dear Sir: In confirmation of the contract and understanding under which you have been litigating at our instance since the autumn of 1910, in matters involving the estate of S. M. Beard, deceased, we agree that your fee shall be $5,000.00, payable at all events on or before the termination of the litigation. It is a part of our understanding that as much of this fee as possible shall be secured from the estate, but we agree that the fee will be paid at all events regardless of the allowance made to you as attorney for the executor. Whatever allowance is made you in that capacity will be regarded as a part of the fee above contracted for, and we will pay whatever additional sum is necessary to insure the receipt by you of the fee above specified.
“Very truly yours,
■ “S. Roscos Beard.
“Mary B. Gray.”
In consequence of the failure of the residuary legatees to conclude a settlement of their property rights under the will of the testator, the plaintiffs declined further to prosecute Mrs. Elizabeth Beard’s cause which was pending at Vancouver, Washington, and set for trial September 17, 1913, and they so notified the defendants. Upon further consideration, however, the plaintiffs concluded to try that suit, and so' informed the defendants, but stated that in case of an adverse decision they would not appeal from the decree, believing it could not be reversed. Mr. Mc-Oamant appeared at the time and place appointed and' tried that case in conjunction with A. L. Miller, an attorney whom he engaged to assist him. After all the testimony had been taken Mr. McCamant, who was then ready to argue the cause, postponed a discussion of the law and facts involved at the request of Judge
In addition to the charge of $5,000 for attorneys’ fees as specified in the defendants’ letter of July 30, 1913, the plaintiffs paid on account of expenses incurred for their clients $18.65, making $5,018.65. They received September 18, 1913, $50; four days thereafter they collected on a judgment which they secured for the defendants the costs amounting to $322.95; they were allowed attorneys’ fees in administering upon the decedent’s estate for Mrs. Gray $250, and for Eoscoe $1,500 — aggregating $2,122.95, thereby leaving due $2,895.70, for the recovery of which this action was instituted.
It is argued by defendants’ counsel that, when the compromise first proposed was not accepted by their clients, they were notified by the plaintiffs that they would not proceed further with the trial of the Elizabeth Beard case then pending at Vancouver, Washington, thereby violating the terms of their agreement
It was admitted by defendants’ counsel at the trial of this action that the fee demanded by the plaintiffs was reasonable and the services which they performed were faithfully and ably conducted. After each of the defendants had agreed upon the settlement which was proposed, they subsequently refused to accede to the stipulated terms, whereupon Mr. McCamant at first informed them that unless they concluded a compromise the firm of which he was a member would not further represent them at the trial of the cause then pending at Vancouver, Washington, and they should secure another attorney for that purpose. He later notified them, however, he would try that suit in the lower court, but would not appeal from an adverse decree rendered therein, believing a reversal thereof could not be obtained. He did try that case, and after all the evidence had been received he postponed his argument therein at the suggestion of Judge Miller, who believed a final settlement could be made, and who negotiated a compromise without consulting him. Is it fair or just that under the circumstances detailed the plaintiffs should be denied any compensation for the faithful and valuable services which they performed because of the alleged technical breach of their contract of employment to litigate all questions that might arise in order to vest in the defendants the legal title to two fifths of the property devised and bequeathed them by their uncle? In discussing-this question it must not be forgotten that no breach of the contract of employment ever occurred, and that, though the plaintiffs at first declined further to pro
“The only question of the case deserving of notice is whether the defense of a failure of consideration was made out in evidence; and we are of opinion that it was not. The defendant, Allcom received the professional services of Butler, in pursuance of their contract, through a series of years; and, although the latter did make the declaration that he could no longer attend to the case, he did not act in accordance with that declaration, but, on the contrary, engaged others to attend to the case for him. The acceptance of their services by the defendant precluded him from afterward objecting to the right of Butler to make the substitution. The fact that the defendant saw fit to compromise the suit did not deprive the attorney of his right to his fee.”
The right of a client to compromise a suit or action without the knowledge or consent of his attorney, and even against his protest, is settled by our adjudications : Jackson v. Stearns, 48 Or. 25 (84 Pac. 798, 5 L. R. A. (N. S.) 390); Jackson v. Stearns, 58 Or. 57 (113 Pac. 30, Ann. Cas. 1913A, 284, 30 L. R. A. (N. S.) 639). Notwithstanding the existence of such right, it cannot be wrongfully exercised so as to deprive the attorney of
*532 “The agreement, as I have always understood it, was that Mr. MeCamant was to reduce to the possession of the executor all of the contested properties in this inventory.”
In ruling upon an objection to the admission of testimony offered the court said:
“You are confronted with this document of July 30, 1913, which I hold' now contains the terms of the agreement, in so far that it fixes the amount, the source from where it is to come, and the time when it is to be paid. As to what services they [the plaintiffs] were to perform, that is another matter. Your question does not go to that.”
As illustrating the view which the court entertained respecting the letter referred to, a part of its charge to the jury reads:
“At this point I will instruct you that the contract between the plaintiffs is set forth in Exhibit ‘A,’ although that contract does not set forth fully what the services were to be. That matter you are to determine. But who it was to be paid to, how it was to be paid, and when it was to be paid are all fixed by Exhibit ‘A,’ and I instruct you that Exhibit ‘A’ — that the agreement as set forth by Exhibit ‘A’ — was a contract to litigate certain questions, a contract to conduct litigation. It was not a contract to effect a settlement or to get results. It was distinctly a contract of employment as attorneys to conduct litigation.”
From the remark of the court to which attention has been called on this branch of the case, and from the part of the charge quoted, it will be seen that the defendants were permitted fully to prove what services the plaintiffs were to perform. The only limitation placed by the court upon the letter of July 30, 1913, in excluding testimony related to the amount of the fee, when it was payable, and the sources from which the money was to be derived. As these items
It is argued by defendants’ counsel that the testimony so excluded was admissible, as tending to substantiate an averment of the answer:
“That by reason of the * # hostile conduct and attitude of plaintiffs toward defendants, designed by plaintiffs to that end, these defendants were harassed, annoyed and embarrassed and hindered to such an extent that they were unable to proceed with said litigation, and were thereby compelled to enter into a compromise agreement with their opponents.”
The testimony shows that the defendants had employed Mr. J. N. Hart, a competent attorney, to attend the trial of the Elizabeth Beard case, so that he might from a personal observation possibly be better prepared to take an appeal from an adverse decree than he could have been from an inspection of a transcript of the testimony received in that case. No evidence was offered by the defendants tending to show they were prevented or hindered by any act of or notice given them by the plaintiffs from taking a decree in the case tried at Vancouver, Washington, or from reviewing such final determination if it were necessary. If it had appeared that the defendants for any reason had been unable to procure other counsel, or if by fraud they had been deprived of a fair trial of the Elizabeth Beard suit, a foundation might thus have been established for the admission of the
“If the plaintiffs did conduct all the litigation that was conducted for the purpose of accomplishing the end contemplated by the parties, then they are entitled to recover. * * If they failed to conduct, that is, to appear in and argue and present any cases that were presented or conducted or argued, then they have failed in their contract. It was not necessary that either Snow or McCamant should appear personally, * * but they were to conduct, either by themselves, or persons employed by them, whatever litigation was necessary. Now, if they did, by themselves, or by other persons employed by them, conduct, appear in, and argue all the litigation that was conducted, argued, or tried, then they have fulfilled their contract. That is the matter to be determined, not whether the litigation was settled, not whether the parties came to an agreement, but did these gentlemen fulfill their obligations? And you will determine that by what thev did.”
It is argued that this instruction, like the preceding, emphasizes the single idea which the court seemed to entertain, that the contract of employment requires the plaintiffs to do nothing more than conduct litigation; that if any of the controverted questions were settled by the agreement of December 16,1913, through
*539 “In order to entitle the plaintiffs to recover in this action they must have completely performed the services agreed by them to be performed; and if you find from the evidence the plaintiffs failed in any substantial particular to perform their contract of employment, your verdict should be for the defendants. They must have completely performed the services. Of course, whenever people settle the litigation, then there is nothing to perform. There was nothing to do after this matter was settled by the agreement of December 16th. That ended the whole litigation.”
It is believed this instruction correctly stated the law applicable to the facts involved when the language employed is read in connection with the rule by which an attorney is entitled to a specific fee, notwithstanding his client may have compromised the controversy: Allcorn v. Butler, 9 Tex. 56.
“It appears that the agreement of the parties was not reduced to writing when they started. It was reduced to writing on July 30,1913, and is the celebrated Exhibit ‘A,’ which I have already told you is a contract to litigate. I instruct you that this contract set forth in Exhibit ‘A’ is binding upon the parties to the litigation and measures the rights of the respective parties. If you find that the plaintiffs performed the services for which the defendants agreed to pay them the sum of money mentioned, then your verdict will be for the plaintiffs in the amount named in the contract, less the credit which the plaintiffs admit the defendants are entitled to.”
Instructions should be construed in their entirety, and not by disconnected clauses: Wellman v. Oregon Short Line Ry. Co., 21 Or. 530 (28 Pac. 625); Smitson v. Southern Pac. Co., 37 Or. 74 (60 Pac. 907); Wadhams v. Inman, 38 Or. 143 (63 Pac. 11); Farmers’ Bank v. Woodell, 38 Or. 294 (61 Pac. 837, 65 Pac. 520);
“When a client contracts with an attorney to pay a stated sum for stated services, and thereafter settles with his adversary, and thereby terminates the litigation, the attorney is entitled to recover the stipulated fee. _ The client by going and settling the case cannot deprive the attorney of his rights.”
The language complained of correctly states the rule applicable to such a state of facts as has hereinbefore been determined. It is argued, however, that this instruction permitted the plaintiffs to take advantage of their own wrong in refusing further to prosecute the Elizabeth Beard suit, thereby compelling the defend^ ants to enter into the compromise agreement. It will, be remembered that, though the defendants were informed by the plaintiffs that they would not further represent them in the trial of the cause, such notice was countermanded, and they did try that suit. Pending a final determination, which was postponed in order to allow the defendants to conclude a settlement, a compromise was made without conferring with the plaintiffs. If the defendants sustained any loss by the plaintiffs’ conduct, it is difficult to understand why they did not allege in the answer in what sum of money, if any, they were damaged. In the absence, of such an averment, no error was committed in the respect mentioned.
Other errors are assigned, but a careful examina-, tion thereof, when viewed in the light of the entire
It is therefore so ordered. Affirmed.