Callahan v. Jones, 27300.

• Decision Date: 18 August 1939
• Docket Number: 27300.
• Citation: 93 P.2d 326,200 Wash. 241
• Parties: CALLAHAN v. JONES et al.
• Court: Washington Supreme Court

93 P.2d 326

200 Wash. 241

CALLAHAN v. JONES et al.

No. 27300.

Supreme Court of Washington

August 18, 1939

Department 2.

Action in replevin by William Callahan against DeWitt Jones and another, to obtain possession of stock certificates and to recover damages for detention thereof, wherein the defendants filed a cross-complaint setting up a claim to an attorney's lien. Judgment for plaintiff, and the defendants appeal, and the plaintiff cross-appeals.

Judgment affirmed.

Appeal from Superior Court, Clark County; William E. Campbell judge.

D. Elwood Caples, of Vancouver, for appellants.

Wilkinson & Langsdorf and Everal Carson, all of Vancouver, for respondent.

BEALS Justice.

The defendants in this action, DeWitt Jones and Eugene G Cushing, at all times herein mentioned, were attorneys at law and co-partners, engaged in the general practice under the firm name of Cushing & Jones, in the city of Vancouver Washington. Since January 1, 1935, Mr. Cushing has been the regularly elected, qualified and acting prosecuting attorney for Clark county, and Mr. Jones has been his regularly appointed deputy.

The plaintiff herein, William Callahan, for some time prior to May, 1936, lived in a trailer, which was standing on property owned by a railroad company, in the city of Vancouver. In the late spring of 1936, he went to eastern Washington on a visit, returning to Vancouver early in the following September. On his return, Mr. Callahan discovered that one George O. Baird had moved the trailer to another location in the city of Vancouver, whereupon Messrs. Callahan and Baird called at the office of defendants, where they discussed with Mr. Jones the matter of the removal of the trailer and the personal property therein located, some of which was missing. A few days later, Mr. Callahan again called at defendants' office, stating to Mr. Jones that he had left in the trailer, secreted under a mattress, stock certificates which he owned, representing one hundred forty-seven shares of the capital stock of Stone & Webster, Inc., of New York City, and that he had discovered that the stock certificates had been stolen. The defendants then made an investigation of the matter, with the result that George O. Baird was apprehended in the city of San Francisco, and returned in custody to Clark county, where he was charged with the crime of grand larceny, based upon the theft of Mr. Callahan's stock. Baird pleaded guilty, and December 15, 1936, was sentenced to the penitentiary.

At the time Mr. Callahan called defendants' attention to the theft of his stock, some conversation was had relative to the recovery thereof, Mr. Callahan requesting defendants to ntify Stone & Webster, Inc., of the fact that the stock had been lost or stolen, for the purpose of preventing transfer of ownership on the corporate records. Mr. Callahan then paid defendants $5 as a retainer for legal services to be rendered, and the corporation was advised, by letter dated September 12, 1936, written by Mr. Jones, and signed by him as 'Deputy Prosecuting Attorney, Clark County, Washington,' of the fact that the stock was missing.

Defendants, in the course of their investigation, discovered that Baird had forged Callahan's signature to a purported assignment on the stolen certificates, and disposed of them through a Vancouver bank. After the termination of Baird's prosecution, and as the result of negotiations between defendants and the bank, defendants, acting on behalf of Callahan, persuaded the bank which had received the certificates from Baird to make good Callahan's loss by turning over to defendants an equal number of shares of Stone & Webster stock, which the bank had purchased November 24th, and which was then of the market value of $4,850. A controversy then arose between Callahan and defendants, the latter claiming the right to charge Callahan a fee in a sum equaling twenty-five per cent of the value of the property recovered for Callahan. Defendants made this claim under an oral contract with Callahan, which contract the trial court found defendants made with Callahan at the time they were retained by Callahan to recover the shares of stock. Callahan refused to pay defendants any fee whatsoever, denying the existence of any contract, and contending that under Laws of 1887-8, chapter CIII, § 1, p. 189 (Rem.Rev.Stat. § 4138), infra, defendants were by law prohibited from making any charge against plaintiff.

Defendants held the stock certificates under a claim of attorney's lien, and during the month of April, 1937, plaintiff instituted this action in replevin, seeking to obtain possession of the stock and damages for its detention. Defendants answered the complaint, and cross-complained, claiming their attorney's lien, and asking to have the same reduced to judgment. The action came on regularly for trial Before the court sitting without a jury, with the result that the court found that an oral contract had been made between plaintiff and defendants, to the effect that defendants should represent plaintiff as his attorneys in an attempt to recover the stolen stock certificates, or their value, and that defendants should receive for their services an amount equal to twenty-five per cent of the value of any recovery which they might make. The court further found that defendants had rendered services to plaintiff, as claimed by defendants, but concluded that under the statute above referred to, and as a matter of public policy, defendants were not entitled to recover on their contract, and that plaintiff was entitled to recover possession of his stock, free and clear from any claim on the part of defendants. From a judgment entered in accordance with the findings of fact and conclusions of law, defendants have appealed. Plaintiff has cross-appealed from the judgment, because of the refusal of the trial court to award him damages on account of the decrease in value of the stock while in defendants' possession.

Error is assigned upon the entry of the judgment in respondent's favor, appellants contending that the judgment does not conform with the evidence and the facts found, and is contrary to law. Cross-appellant contends that the trial court erred in not allowing him damages, as above stated.

Laws of 1887-8, chapter CIII, § 1, p. 189 (Rem.Rev.Stat. § 4138), above referred to, reads as follows: 'No prosecuting attorney shall receive any fee or reward from any person on behalf of any prosecution for any of his official services, except as provided in this act, nor shall he be engaged as attorney or counsel for a party in any civil action, [or for] a party to any criminal proceedings depending upon the same facts as such criminal proceedings.'

The word 'act' in the third line of the section should undoubtedly read chapter, as printed in Rem.Rev.Stat. § 4138.

The same statute appears in Rem. & Bal.Ann.Codes & Statutes of Washington, as§ 3969, accompanied by the following note: 'The word 'criminal' in the last line should read 'civil," and the word civil is included in brackets following the word criminal. This reading of the section has been continued in subsequent codes. Whether the notation last referred to is correct is unimportant, in so far as this action is concerned.

Findings Nos. 7 and 8 made by the trial court read as follows:

'VII. That plaintiff, at the time of retaining defendants' services, agreed to pay and defendants agreed to accept for services to be performed by them, a sum equivalent to 25% of the amount, if any, recovered for plaintiff, and that such sum based on the value of the stock recovered for plaintiff at the time of such recovery was and is the sum of $1212.75, and that neither said amount, or any portion thereof, has been paid to defendants, and that defendants claim an attorneys' lien upon said stock certificates for the payment thereof.

'VIII. That the contract of employment entered into between plaintiff and defendants, as recited in the preceding paragraph, was and is in contravention of public policy and in violation of the provisions of § 4138 of Remington's Revised Statutes of the State of Washington, and, therefore, void and of no force and effect.'

It appears that, December 4, 1936, respondent executed a power of attorney to appellants, authorizing them to represent him in all legal proceedings incidental to the recovery of respondent's stock. The power of attorney was signed several days Before the criminal prosecution, which appellant Cushing had instituted by information against Baird, was terminated by the latter's plea of guilty and the imposition of sentence. It clearly appears from the testimony of appellant Jones that the contract which appellants entered into with respondent was made prior to the institution of the criminal proceeding against Baird.

Article 11, § 5, of the constitution of this state, reads as follows: 'The legislature, by general and uniform laws, shall provide for the election in the several counties of boards of county commissioners, sheriffs, county clerks, treasurers, prosecuting attorneys, and other county, township, or precinct and district officers, as public convenience may require, and shall prescribe their duties and fix their term of office. It shall regulate the compensation of all such officers, in proportion to their duties, and for that purpose may classify the counties by population. And it shall provide for the strict accountability of such officers for all fees which may be collected by them, and for all public moneys which may be paid to them, or officially come into their possession.'

The legislature has prescribed the duties of prosecuting attorneys (Rem.Rev.Stat. §§ 4130, 4131, 4132 4133, 4136, 4137 and 4138), and by Rem.Rev.Stat. §§ 4200-5a, 4201 and...