Burdick v. Mann, 5884.

• Decision Date: 25 April 1931
• Docket Number: No. 5884.,5884.
• Citation: 236 N.W. 340,60 N.D. 710
• Parties: BURDICK v. MANN.
• Court: North Dakota Supreme Court

60 N.D. 710

236 N.W. 340

BURDICK

v.MANN.

No. 5884.

Supreme Court of North Dakota.

April 25, 1931.

Syllabus by the Court.

The order of trial of cases made at the opening of a term which does not fix a day certain for the trial of each case is subject to change within the sound discretion of the trial court, and an order advancing a case for trial out of its regular order upon application of one of the parties, and after notice and hearing, will not be disturbed, unless there has been a gross abuse of judicial discretion resulting to the prejudice of one of the litigants.

Syllabus by the Court.

The granting of a continuance rests largely within the discretion of the trial court, and an order denying a continuance because of the absence of a material witness is proper where the moving affidavits do not show except in a general way what such witness would testify to if present, or that the facts desired cannot be proven by other available witnesses, and where there is no showing of diligence to secure the testimony of such witness by deposition or his personal presence at the trial.

Syllabus by the Court.

A party is not bound to furnish the bill of particulars provided for by section 7457, Comp. Laws of 1913, on a mere demand; but, before delivery thereof can be compelled or penalties for the failure to do so can be inflicted, the court or judge must order that a bill of particulars be furnished.

Syllabus by the Court.

While it is better practice to incorporate in a hypothetical question all the facts upon which an expert witness is asked to give an opinion, yet it is not error to permit an expert to give an opinion based on the testimony of another witness given at the trial and which the expert has heard, where such evidence is not long or voluminous, and there is no conflict in the facts testified to by such other witness.

Syllabus by the Court.

It is not error to refuse to permit an owner of bonds to testify as to what third parties have said to her about the value of such bonds, as this would violate the rule against hearsay testimony.

Syllabus by the Court.

The granting of a new trial for insufficiency of the evidence is largely within the discretion of the trial court, and it is not error to deny a motion for a new trial where the evidence is conflicting and where there is ample evidence in the record to sustain the verdict if believed by the jury.

Syllabus by the Court.

An application for a new trial upon the ground that the verdict is excessive and appears to have been given under the influence of passion or prejudice is addressed to the sound judicial discretion of the trial court. Held, that a verdict of $9,000 in favor of plaintiff, for the reasonable value of professional services as an attorney and counsellor at law, rendered the defendant at her instance and request, is amply sustained by the evidence, and the order of the trial court denying a motion for a new trial on the ground that such verdict is excessive was proper.

Appeal from District Court, Burleigh County; John C. Lowe, Judge.

BURR, J., dissenting.

Action by U. L. Burdick against Beatrice Mann. From a judgment for plaintiff and an order denying motion for new trial, defendant appeals.

Affirmed.

See, also, 59 N. D. 611, 231 N. W. 545.F. O. Hellstrom, of Bismarck, and H. A. Mackoff, of Dickinson, for appellant.

William Langer, of Bismarck, for respondent.

McKENNA, District Judge.

Plaintiff instituted this action to recover the sum of $10,000, the alleged reasonable value of professional services which plaintiff claims to have rendered the defendant at her special instance and request in his capacity as attorney and counselor at law.

The answer of the defendant, while admitting the employment of the plaintiff as her attorney, denied the value of the services, and set up a counterclaim, alleging that she had been damaged by the carelessness and negligence of the plaintiff in handling her litigation in the sum of $173,000. The jury found against the defendant upon her counterclaim, and returned a verdict in favor of the plaintiff in the sum of $9,000.

The record discloses that in the year 1917 the defendant and George D. Mann were husband and wife, and at that time purchased at a receiver's sale the newspaper and publishing business known as the Bismarck Tribune for the sum of $13,600. The sum of $6,500 for the purchase of the property was advanced by the defendant, and this was later repaid to her from the profits of the Bismarck Tribune Company. The balance of the purchase price was likewise paid from time to time from the profits of the business. Mr. and Mrs. Mann then organized the Bismarck Tribune Company, a corporation, with a capital stock of $25,000, divided into 250 shares of the par value of $100 each. The incorporators of the Bismarck Tribune Company were the defendant and her husband and her sister, Minnie Ostrander, and they were the sole stockholders. Two hundred forty-eight shares of stock were issued in the name of the defendant, one share in the name of her sister, and one share in the name of her husband. Her stock certificate, however, remained in the stock book, and was never withdrawn by her until October, 1927, when some difficulty arose between her and her husband.

George D. Mann was the president and general manager of the company, the defendant was secretary and treasurer, and the three stockholders constituted the board of directors. From 1917 to 1924 the defendant took a more or less active part in the business. From 1924 to 1927 the defendant spent a large portion of the time in Boston, Mass., because of the illness of her daughter and because of her desire to educate her daughter and her foster daughter. The business of the Bismarck Tribune Company had grown by leaps and bounds, so that for a number of years prior to 1927 the defendant and her husband were each drawing from the business $200 a week, and the profits were approximately $40,000 to $60,000 a year. In 1927 the fiscal valuation of the Bismarck Tribune Company was about $309,000, $50,000 of which was for the good will of the business and $25,000 for the Associated Press franchise.

In October, 1927, George D. Mann commenced an action in the district court of Burleigh county to restrain the defendant from interfering with the business of the Bismarck Tribune Company, and to determine the ownership of the stock. And it was at this time that the defendant first employed the plaintiff, Mr. Burdick, as an attorney to look after her interests.

The evidence shows that at the time of the trial the plaintiff was 50 years of age; had been a resident of North Dakota for 48 years; was a graduate of the University of Minnesota; had been engaged in the active practice of law in North Dakota for 25 years; was a member of the State Legislature in 1907; Speaker of the House in 1909; Lieutenant Governor in 1911; State's Attorney of Williams County for 6 years; and was then Assistant United States District Attorney at Fargo, and general counsel for the Farmers' Union, with a law office at Fargo and a branch office at Williston, N. D.

On October 17, 1927, the plaintiff came to Bismarck at the solicitation of the defendant, and was employed by her as chief counsel to take care of all matters that might arise touching her property rights in the Bismarck Tribune Company, and also any further litigation that might be commenced. Judge Jansonius had issued a restraining order in the injunction suit, restraining the defendant and her auditor, Mr. Luehe, of Minot, from interfering in any way with the business of the Bismarck Tribune Company. The plaintiff secured a modification of this order, allowing an audit to be made, but the original injunction restraining the defendant from appearing in the Bismark Tribune Company plant or taking part in the management of its affairs continued in force. It was about this time that the defendant withdrew from the stock book the certificate of stock issued in her name for 248 shares. A few days later George D. Mann commenced an action for divorce against the defendant, and the plaintiff, as attorney, appeared for the defendant and served an answer in the case. There was an amended complaint in the divorce proceedings, and also an amended answer and a cross-bill filed by the defendant in which she asked for a divorce. From this time until February, 1928, there were numerous consultations between the plaintiff and the defendant in reference to her rights, and in reference particularly to a possible settlement of the divorce proceedings and her property rights. During this period other counsel had also been employed to look after the defendant's interests and to assist Mr. Burdick, namely, the firm of Lovell & Horner, of Fargo, the firm of Dullam, Young & Burke, of Bismarck, and George A. Bangs, of Grand Forks. Both the injunction suit and the divorce suit came up for trial before Judge C. W. Buttz at Bismarck about the 13th of February, 1928. George D. Mann was represented by the firm of Sullivan, Hanley & Sullivan, of Mandan, and Zuger & Tillotson, of Bismarck. Numerous consultations were had between the attorneys, and finally on February 17, 1928, a stipulation of settlement was made, by which it was agreed that the defendant was to receive from George D. Mann the sum of $165,000, secured by a bond issue upon the entire property and plant of the Bismarck Tribune Company, at the rate of 5 per cent. per annum. The bonds were payable at the rate of $6,000 every six months for a period of 23 years, making an aggregate of $278,000. In addition, the defendant received the family home at Bismarck and its contents, worth from $30,000 to $35,000, the family Cadillac automobile, valued at about $1,500; and was awarded the custody of her minor daughter, Eleanor Mann. Defendant was permitted to prove up her divorce action, securing a divorce on the grounds of cruelty and inhuman treatment. There being some question as to the validity of...