Cott v. Wall

• Decision Date: 10 December 1918
• Docket Number: 3274
• Citation: 178 P. 42,53 Utah 282
• Court: Utah Supreme Court
• Parties: VAN COTT et al. v. WALL

178 P. 42

53 Utah 282

VAN COTT et al. v. WALL

No. 3274

Supreme Court of Utah

December 10, 1918

On Application for Rehearing January 22, 1919.

Appeal from the District Court of Salt Lake County, Third District Hon. J. Louis Brown, Judge.

Action by Waldemar Van Cott and others against Enos A. Wall.

Judgment for plaintiffs. Defendant appeals.

AFFIRMED.

H. H Henderson for appellant.

Bagley & Ashton and Howat, Marshall, Macmillan & Nebeker for respondents.

FRICK C. J. McCARTY, CORFMAN, THURMAN, and GIDEON, JJ., concur. WEBER, J., did not participate.

OPINION

FRICK, C. J.

The plaintiffs, as partners and attorneys at law, commenced this action to recover a balance that they alleged was due them as attorneys' fees for legal services rendered by them for the defendant at his request.

In view that it is seriously contended that the complaint is deficient in certain particulars, we here insert the same, with the exception of the formal parts. The complaint reads:

"That on or about the 1st day of November, 1916, at Salt Lake City, Utah, the defendant employed plaintiffs as attorneys and counselors to take charge of the interests of defendant in certain litigation then and there pending in the courts of Utah, to which the defendant was party, and to which the Bingham & Garfield Railroad Company and Utah Copper Company were adverse parties, and to advise, consult with, and represent the defendant's interests in respect to the claims, demands, and mining rights, connected with, and growing out of, mining ground and premises owned by defendant in West Mountain Mining District, Salt Lake County, Utah.

"That the rights, interests, and property so committed to the charge of plaintiffs as such attorneys and counselors in respect to which the plaintiffs were called upon to advise, and did advise, consult with, and represent the defendant, were of great pecuniary value, to-wit, not less than $ 500,000.

"That under and pursuant to the employment aforesaid, at the instance and request of defendant, and for his benefit, the plaintiffs negotiated, recommended, framed, and supervised certain contracts, and performed other valuable services, for and on behalf of defendant from and after about the 1st day of November, 1916, until on or about the 10th day of April, 1917, to the effect and with the result that the plaintiffs procured to be paid to defendant for the said rights, property, and claims in controversy, and in settlement of the litigation, the sum of $ 750,000.

"That during the course of said employment, and for the special use and benefit of defendant, and at his special instance and request, the plaintiffs laid out and expended the sum of one hundred and eleven dollars ($ 111).

"That the services so as aforesaid rendered by plaintiffs to defendant were and are of the reasonable value of twenty-five thousand dollars ($ 25,000).

"That no part of the aforesaid compensation or of the said moneys laid out and expended have been paid to the plaintiffs, excepting only the sum of two thousand dollars ($ 2,000), paid on or about the 9th day of February, 1917 and the further sum of two hundred and fifty dollars ($ 250), paid on or about the 24th day of February, 1917.

"That there remains due and unpaid from the defendant to plaintiffs, by reason of the services and expense aforesaid, the sum of twenty-two thousand eight hundred and sixty-one dollars ($ 22,861), payment of which has been demanded."

We deem it more convenient to dispose of the objections to the complaint at this point and before proceeding to the other assignments.

The defendant interposed both a general and a special demurrer to the complaint. The special demurrer was based upon the ground that the complaint was ambiguous and uncertain (1) because defendant was unable to ascertain therefrom whether the alleged cause of action was for attorneys' fees or for "a commission on selling real estate," etc.; and (2) that the complaint was uncertain and ambiguous in that the defendant could not ascertain and determine therefrom the nature of the services which plaintiffs alleged they had rendered for the defendant, and that it was further uncertain in that defendant could not ascertain therefrom what the alleged "other valuable services" were.

There is no merit whatever to the contention that the complaint is defective in substance. Nor is there any merit to the contention that the complaint is ambiguous and uncertain. The complaint is quite specific, even more specific than complaints of this character usually are in actions of this kind. See 2 Boone, Code Pl. Forms, p. 398; 2 Ency. of Forms, under the title "Attorneys," and especially under the subtitle "Actions by Attorneys," pp. 984-987; and Beekman V. Platner, 15 Barb. (N.Y.) 550. A mere cursory examination of the forms of complaints in such actions, and the cases in which they were filed, will convince the most exacting pleader that the complaint in this case was sufficient to withstand both the general and special demurrer. Quite apart from those forms, however, the complaint is not vulnerable to the objections urged against it under our Code of Civil Procedure. Moreover, it is quite apparent from an examination of defendant's answer that he had no difficulty whatever in presenting his side of the controversy and in meeting the claims of the plaintiffs. In his answer the defendant admitted that the plaintiffs were practicing attorneys, and that the defendant had employed them to conduct a certain cause for him, but denied that they had been employed for all the matters stated in the complaint. The defendant also admitted that the value of the property involved was as alleged by plaintiffs, but denied that their services were worth $ 25,000, or any other sum in excess of what had been paid them as alleged in the complaint. The defendant in effect denied all other allegations of the complaint.

This answer was signed on behalf of the defendant by the firm of Marioneaux, Straup, Stott & Beck. This firm, it seems, on account of some misunderstanding with the defendant, subsequently withdrew from the case.

The complaint was filed in the district court on June 26, 1917, and the answer was filed August 11, 1917. The cause was set for trial on the 21st day of December, 1917. It was continued on that date to January 21, 1918. On the latter date it was again continued to the 31st of that month. On that date it was, by agreement of counsel, again set for trial on the 18th day of February. On that day it was called for trial, and the record then disclosed that the defendant was represented by the firm of King, Braffet & Schulder, attorneys at law and members of the bar of this court. It appears, however, that none of the foregoing attorneys appeared on the date last mentioned except Mr. Schulder. He at once made a motion for a further continuance of the case "for a reasonable length of time." We prefer to state what occurred in the court below at the time the motion for a continuance was made in the language of defendant's counsel who represents him in this court on this appeal. The statement is as follows:

"Thereafter, on the 18th day of February, 1918, this case came on for trial before Hon. J. Louis Brown, one of the judges of the Third judicial district court, the plaintiffs appearing by their attorneys, and the defendant appearing by his attorneys, King, Braffet & Schulder, Mr. Schulder representing said firm of attorneys. As soon as the case was called for trial Mr. Schulder made a motion to the court for a continuance of the same, and swore the defendant, Mr. Enos A. Wall, upon the hearing of said motion. And from the testimony therein set out it appears that the defendant was not satisfied to go to trial with only one attorney representing him, and that he had endeavored to get other attorneys, but had been unsuccessful; and that he asked the court, upon payment of costs and a reasonable attorney's fee, that this case be postponed until a later day. The court denied that motion. Thereupon Mr. Schulder, as attorney for the defendant, withdrew the name of King, Braffet & Schulder as attorneys for the defendant and said attorney and the defendant immediately left the courtroom.

"Thereupon the trial proceeded under the directions of the court, witnesses were sworn by the plaintiffs, and evidence was introduced, and during the whole time of this trial the defendant was not present in court either in person or by counsel.

"At the conclusion of plaintiffs' testimony the following proceedings were had:

"The Court: 'Do you care to argue the matter to the jury? I will state probably I won't submit it until to-morrow morning.'

"Mr. Marshall: 'We don't care to argue it. We will submit it.'

"The Court: 'Well, the instructions are not prepared at this time, so that it will be necessary for it to go over until to-morrow morning. If you wish to keep it open you may do so for the other testimony, or--'

"Mr. Marshall: 'No; we at this time don't care to argue. We can properly submit without any argument at all.'

"The Court: 'I may inquire if you wish to waive written instructions to the jury?'

"Mr. Marshall: 'Well, we have written instructions, if the court please.'

"The Court: 'The court will instruct the jury orally, if you desire, and the instructions may be written and subsequently filed.'

"Thereupon the court instructed the jury orally.

"Thereupon the jury retired to consider of their verdict, and returned into court a verdict of $ 24,000."

Counsel who now appears for the defendant in proper time filed a motion for a new trial in the court below, setting forth the statutory grounds. The motion was denied, and hence this appeal.

The only assignments of error, in addition...