Thorp v. Ramsey

51 Wash. 530 | Wash. | 1909

Rudkin, C. J.

— This was an action to recover attorney’s fees. The complaint alleged that between the' first day of January, 1906, and the first day of June, 1907, the plaintiffs performed services as attorneys for the defendant, at his special instance and request, in attending to matters in his behalf in certain litigation in court, and in consulting with and advising the defendant, and in drawing and engrossing certain papers and documents, which services were of the reasonable value of $2,000, no part of which had been paid, except the sum of $50.

To this complaint the defendant appeared and moved the court:- (1) To require the plaintiffs to make their complaint more definite and certain by stating and setting forth therein, when, where, how, and by whom the plaintiffs were requested to perform the alleged services, and to describe the litigation therein mentioned; and (2) for an order requiring the plaintiffs to furnish the defendant with a bill of particulars of their said claim and demand. The motion to make the complaint more definite and certain was denied, but the demand for a bill of particulars was granted. In obedience to this demand or order, the plaintiffs filed a bill of particulars, containing seventy-three separate items of $25 each, one item of $100, and one item of $1,000, for services performed on divers dates between November 8, 1906, and January 28, 1907, in connection with two certain actions entitled Ramsey v. Wilson and Wilson v. Ramsey.

The defendant next moved to make the bill of particulars more definite and certain by stating the names and number of witnesses consulted, what documents and records were examined and by whom, what documents and how many were prepared by the plaintiffs and at whose instance, the number of affidavits prepared and the names of the different affiants, by specifying the dates when and at whose instance the plaintiffs appeared in court, what the alleged services in court consisted of, and to further itemize the charges of $100 and $1,000 for services rendered in court and on the trial of the actions. This motion was denied, and the defendant answered over. The cáuse ivas tried before a jury, resulting in a verdict in favor of the plaintiffs for the sum of $1,500; and from the judgment entered pursuant to this verdict, the present appeal is prosecuted.

The first error assigned is in the refusal of the court to require the respondents to make their complaint and bill of particulars more definite and certain. The appellant certainly had no right to insist upon both of these motions. It would be an idle formality to require the respondents to set forth every detail of their cause of action in their complaint, and then supplement the complaint by a bill of particulars. There was no error, therefore, in the denial of the motion to make the complaint more definite and certain. Nor was* there any error in the denial of the motion directed against the bill of particulars. The respondents attempted the impossible when they attempted to segregate and itemize their claim by making a separate charge for each step taken in the preparation for trial and trial of the actions. The two actions referred to in the bill of particulars were, first, an action by the appellant to. quiet his title to a certain forty-acre tract of land near the city of Seattle, and second, an action by the defendant in the last-mentioned action against the appellant herein to recover possession of the same land under the forcible entry and detainer statute. When the respondents informed the appellant that their cause of action was for services performed in connection with these two actions, we think they gave him all the information he was entitled to under any system of pleading. Moore v. Scharnikow, 48 Wash. 564, 94 Pac. 117.

It is next contended that the court erred in admitting in evidence the records and files in the two actions referred to. The files and records in a cause are entirely competent and proper for the consideration of the court and jury in an; action to recover the reasonable value of services performed by an attorney in such cause; and this, whether the attorney was the sole attorney in the cause or not. Objection is further made to the hypothetical questions propounded to the expert witnesses, but the objection is without merit.

It is next contended that the court erred in sustaining an objection to a question propounded to the respondent Thorp making inquiry as to the reasonable value of his personal or individual services. The services performed by the two respondents were so intermingled that there was no error in this ruling.

The court instructed the jury in effect that if two persons form a copartnership for the practice of the law and the firm is entitled to the emoluments of the firm and each of its constituent members, the firm may maintain an action in the firm name to recover the value of services performed by the firm or by any of its members. Under such a state of facts, the firm would be the real party in interest, and under our statute might properly maintain the action. It might be the better practice to allege the employment of the member of the firm and the interest of the firm in the emoluments, but no prejudice resulted to the appellant in this case from a failure so to do. There was, therefore, no error in the giving of this instruction, nor in the refusal of the court to give the instruction requested by the appellant setting forth the contrary view. At the request of the appellant the court gave the following instruction:

“The relation of attorney and client is one of a personal nature, and where an attorney is employed in the case the law is’ that he has no authority, without the consent of his client, to delegate his authority or substitute another attorney in his stead; and in this case I instruct you that if you should find from the evidence in this case that the firm of Thorp & Wheeler was not employed by Ramsey, but that only Thorp was employed by defendant Ramsey, and if you further find that defendant Ramsey had no knowledge that Wheeler was performing or rendering any services for him, then I instruct you that you can allow nothing for any services that may have been performed by Wheeler, if you find any such services were performed by him.”

The court afterwards modified this instruction by stating that the rule forbidding the delegation of authority or substitution of attorneys has no application to the members of a copartnership. This modification in no manner changed or nullified the positive instruction that a recovery for services of one member of the firm could not be had where neither the firm nor that member were employed. While the instructions are somewhat involved and conflicting, we cannot say that they were in the least prejudicial'to the appellant.

It is lastly contended that the verdict is not sustained by the testimony. Where a question of attorney’s fees is submitted to the trial court for decision this court may review its action, but where the question is submitted to a jury their verdict stands on the same footing as a verdict in any other case and will not be disturbed by this court if sustained by competent testimony. There is such testimony in this record. Other questions are discussed in the brief, but we find them without merit.

Judgment affirmed.

Dunbar, Crow, Mount, and Fullerton, JJ., concur.

Chadwick and Gose, JJ., took no part.