Cottingham v. Doyle

• Decision Date: 02 February 1949
• Docket Number: 8828.
• Citation: 202 P.2d 533,122 Mont. 301
• Parties: COTTINGHAM et al. v. DOYLE.
• Court: Montana Supreme Court

202 P.2d 533

122 Mont. 301

COTTINGHAM et al. v. DOYLE.

No. 8828.

Supreme Court of Montana

February 2, 1949

As Amended February 10, 1949.

Appeal from District Court, Seventh District, Richland County; F. S P. Foss, Judge.

Action by C. N. Cottingham and Ray Barker against Arthur H. Doyle individually, and as executor of estate of Thomas James Doyle, deceased, for compensation due under a written contract for attorneys' services. From a judgment for $1,000, plaintiffs appeal.

Reversed and remanded for a new trial.

C. N. Cottingham, pro se, of Fairview, Ray Barker pro se, of Kansas City, and Desmond J. O'Neil, of Glendive, for appellants.

C. T Sanders, of Sidney, for respondent.

FREEBOURN Justice.

On December 1, 1943, Ray Barker, an attorney of Kansas City, Missouri, and Thomas James Doyle, of the same place, signed a written contract whereby Barker was engaged to act as Doyle's attorney in matters arising from fraud practiced upon Doyle whereby he was induced to assign his one-third interest in the estate of Edward F. Doyle, deceased, to Ben Doyle.

Barker's fee was to be an amount equal to one-half of any amount recovered. He was to be reimbursed for all expenses.

Barker associated himself with C. N. Cottingham, a Montana attorney, and they commenced an action in the district court of Richland County, Montana, for Doyle. They were successful, obtaining judgment for Doyle, on February 13, 1946, whereby Doyle was given a one-third interest in the estate of Edward F. Doyle, deceased.

Thomas James Doyle died. His executor, Arthur H. Doyle, as the result of the efforts of Barker and Cottingham, received $5,584.20 in cash and a one-third interest in real property, consisting of some 736 acres of land. The attorneys also expended $35.80 of their own money as necessary expenses.

Receiving nothing for their services, Barker and Cottingham brought suit against several defendants to collect their compensation, due under the written contract. The matter went to trial before a jury in the district court of Richland county, Montana, on December 4, 1947, on issues made by an amended complaint, answer thereto, and reply, against one defendant, Arthur H. Doyle, as executor of the estate of Thomas James Doyle, deceased, Judgment was for plaintiffs by directed verdict, on motion of defendant's counsel, in the amount of $1,000. From this judgment, plaintiffs appeal.

The amended complaint set out the written contract (offered as exhibit 1 in evidence) in full.

The answer denied the signing thereof by Doyle. As an affirmative defense it alleged that if Doyle did enter into the contract, he was, at such time, 'in such poor physical health from lack of proper care and food that his mind had become impaired from the effects thereof' and was incapable of taking care of his own affairs. It admitted that Barker and Cottingham did perform services on behalf of Thomas James Doyle in the institution and carrying to a successful conclusion a certain civil action whereby there was restored to Thomas James Doyle his interest in the Edward F. Doyle estate, amounting to $5,584.20 in cash and a one-third interest in certain real property. The answer further alleged the defendant was ready and willing to pay plaintiffs $1,000, the claimed reasonable compensation for the services rendered.

Appellants specify fifteen errors. One only need be considered. It is as follows:

'1. The court erred in sustaining the objection of counsel for defendant to plaintiffs' offer of plaintiffs' exhibit one, being the written agreement between

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