90 Wash. 162 | Wash. | 1916
Frank J. Scougale, one of the respondents and husband of respondent Cora Scougale, on August 9, 1909, employed appellant as attorney and gave to him the following memorandum in writing:
“Tacoma, Wash., Aug. 9, 1909.
“I hereby retain Jesse Thomas as my attorney to commence an action for me and my wife against Dominic Cavalero and Norval McGhie and their wives to establish my interest in the lands and timber in secs. 20, 29, 19, 30 and 32, twp. 22, N. R. 2 east, and to realize the value thereof, together with damages for breach of the agreement between me and said Cavalero and McGhie when we entered upon the joint adventure for the acquisition of said lands and timber, which were taken in the name of the Gig Harbor Timber (or Lumber) Co., and authorize him to associate with him Fred S. Fogg, and agree to pay my said attorney for his services twenty-five (25) per cent of whatever may be realized by suit, settlement or compromise of my claim in and to said property or damages.
Frank J. Scougale.”
Pursuant to the employment, appellant at once commenced an action for his clients as a marital community, for the purposes designated in the employment. Afterwards the action
“The within retainer is hereby extended to the foreclosure suit brought by Peter Sandberg a few days ago against myself and wife and Cavalero and McGhie et al. upon the same terms and rate of compensation.”
That suit was permitted to go to judgment by default on the part of defendants Scougale, appellant representing Scougale in transactions had with the mortgagee and his attorneys ; and it • appears that, previous to the giving of the mortgage, Scougale had borrowed $2,600 from the Pacific National Bank of Tacoma, and Sandberg had gone upon his note with him, and a mortgage was given to indemnify Sand-berg against loss by reason of this note or any future advancements. During the pendency of the action, Sandberg stated to appellant and to Scougale that all he wanted was to be made whole on that note at the bank and saved harmless ; that he did not want the property, and that, when he was paid off out of the proceeds received from Cavalero, he
After the adjudication in the foreclosure suit, Sandberg filed a suit against Scougale, Cavalero, and McGhie, and their wives, for an accounting and winding up of the Gig Harbor venture and a division of the property or its proceeds. Appellant’s contract of retainer was extended to this action upon the same terms, and appellant, on behalf of Scougale and wife, filed an answer and cross-complaint setting up their one-third interest in the land and timber not covered, as well as that covered, by the Sandberg mortgage. Sandberg’s complaint and Scougale’s cross-complaint covered substantially the same field as Scougale’s first action hereinbefore referred to. The case was tried in Snohomish county, and Sandberg was represented by Messrs. Bates, Peer & Peterson. No effort was made to segregate the interests of Sandberg and Scougale in that action, their combined interests being referred to as “the Scougale interest” or “the Scougale third,” and they prosecuted a joint appeal
The decree after appeal, as prepared and agreed to by the attorneys, awarded to Sandberg and Scougale one-third of the net funds in Cavalero’s hands, after being reimbursed for advancing Scougale’s third of the original cost of land and timber, with legal interest thereon, one-third of about $3,000 in bills receivable, which were then of doubtful value and of which nothing has been collected, and one-third of the three hundred and sixty acres of logged-off land. Appellant and the attorneys for Sandberg received from Cavalero the sum of $5,644.45 in cash. With this sum they paid Scougale’s obligations to Sandberg on account of the note to the bank, with the six years’ interest, and the court costs and attorney’s fees which Sandberg actually paid out in the foreclosure suit and in the suit for accounting, which took all of the above sum of cash except $388.55, which appellant received and applied as part payment of his fee. He has received no other compensation. The money above mentioned was received from Cavalero and the Sandberg claim paid off in December, 1913. This action by appellant is for his stipulated share of the property, under the terms of his employment, recovered for his clients, and to establish a trust to the extent of his interest in the interest recovered for his clients, and to compel a partition of his interests from all the other interests therein.
One of the allegations of the complaint is that the defendants Prochaska and wife have a right to purchase a certain
Upon the conclusion of the testimony, defendants Scougale and wife and Schliemann and wife moved the court to dismiss the action with judgment in their favor, for the reason that appellant had not made a case sufficient to entitle him to a decree. The motion was granted, the court remarking:
“It seems to me that the plaintiff entered' into a contract to take part of the proceeds of suit if he won anything and if he did not he did not get anything, and on the record here he did not. The suit took every bit of the property. I understand the plaintiff’s client got nothing out of it.”
Appellant then inquired of the court if it interpreted the contract that appellant was not to get anything under it until not only Cavalero’s claim but Sandberg’s claim was all cleared off, to which the court replied:
“They do not appear to be cleared off. You can probably bring another suit and we will try to arrange the decree so that you will not be prevented from that. You cannot fasten any claim on the real estate. That is all that I am deciding now.”
We think the court was in error when it concluded, at the close of the evidence, that appellant’s clients got nothing out
There is a further reason why the action should' not have been dismissed, in that twenty acres of land in controversy was not covered by Sandberg’s mortgage nor by the sheriff’s deed. It had never been mortgaged or sold, and is part of the three hundred and sixty acres covered by the final decree of the superior court of Snohomish county wherein it was adjudged to belong, two-thirds to Cavalero and one-third to Sandberg and Scougale as their interests might appear. Sandberg’s mortgage never having included this twenty-acre tract, the one-third interest therein belongs to Scougale at this time. It is clear that the Scougales got this interest as the result of the litigation conducted for them by appellant.
As to the contention that Mrs. Scougale is not bound by the contract made by her husband with appellant, we think there is no merit in it. The testimony of appellant is not contradicted that Mrs. Scougale showed considerable interest and concern in the litigation, that he saw her one or more times at her house, and that she called him up by telephone one or more times inquiring as to the progress of matters;
Appellant very substantially performed his agreement with Scougale to the very great advantage of both him and his wife. “The laborer is worthy of his hire,” even if he is only an attorney, and a contract of a business man with an attorney, fully performed by the attorney, ought to be as good, in morals and in law, as any other contract.
The judgment will be reversed, and the cause remanded to the court below with instructions to grant judgment in favor of appellant for the one-fourth of the $5,644.45 recovered in money, less the $388.55 received by him, and establishing his undivided one-fourth interest in the one-third interest of Scougale and wife in the lands described in the complaint, subject to the right of the defendants Prochaska to purchase twenty acres under their purchase option; and that appellant have the amount of his one-fourth interest in the cash money recovered added to his one-fourth interest in the one-third of the land, and that he have partition as prayed. 30 Cyc. 194.