9 Wash. 524 | Wash. | 1894
The opinion of the court was delivered by
— This is an appeal from an order granting a new trial. Numerous questions have been presented for the consideration of the court, and elaborately argued by counsel. We shall find it necessary to refer to but few of them. It is conceded by the appellant that an order granting a new trial will not be set aside by the appellate court unless from the record it appears that there was an abuse of discretion by the superior court in making it. And for the reason that such an order does not deprive the one against whom it is made from having the issues tried as prescribed by law, and thereby his rights protected, while the result of its reversal is to finally determine the rights of the parties to the action, it is the duty of the appellate court to refuse to disturb such an order unless the abuse of discretion is made clearly to appear. If there is any theory upon which the action of the lower court can be reasonably sustained the order should be affirmed.
This action was brought to recover from the defendants jointly a fee for legal services growing out of the defense of an action brought against them in the circuit court for the district of Washington. The answer of some of the defendants was a general denial of the material facts stated in the complaint. The other one admitted that he had employed the plaintiff to represent him in the action referred to; that the services rendered in pursuance of such employment were of a certain value, and alleged that he had fully paid the plaintiff therefor. The trial court allowed proof to be introduced tending to show that the employment of the plaintiff was not the joint act of the
In our opinion the authorities do not establish the doctrine contended for by the appellant, at least it does -not so satisfactorily appear therefrom that the doctrine is as contended for by him as to justify us in setting aside the rule to the contrary established by the supi’eme court of this territory in the case of Puget Sound Iron Co. v. Worthington, 2 Wash. T. 472 (7 Pac. 882). In that case it was
The case is not here presented of the effect of proof which tended to establish liability against one or more of the defendants, as there was no attempt to show the value of services rendered for any one of the several defendants. In cases like the one at bar a joint contract should only be found upon clear proof. It is greatly to the interest of the plaintiff to make out a joint contract, if possible, for by so doing he would be assured of being able to recover his fee for services rendered for all of the defendants, if any one of them was responsible, while if several contracts only were established he could recover his entire fee only in the event of each of the defendants being of such pecuniary ability that the judgment against him could be collected. For this reason it may well be doubted whether or not the plaintiff by his own testimony established a joint liability against the defendants, and it is clear that from such testimony, and that upon the part of the defendants, such a state of the proofs was presented that it was no abuse on the part of the trial court to find that a joint contract had not been sufficiently established to warrant the verdict rendered thereon.
The order appealed from will be affirmed.
Dunbar, C. J., and Stiles and Anders, J., concur.