Cunningham v. Springer

• Decision Date: 01 September 1905
• Parties: CUNNINGHAM et al.v.SPRINGER et al.
• Court: New Mexico Supreme Court

13 N.M. 259

82 P. 232

CUNNINGHAM et al.

v.SPRINGER et al.

Supreme Court of the Territory of New Mexico.

Sept. 1, 1905.

Error to District Court, San Miguel County; before Chief Justice William J. Mills.

Action by Joseph M. Cunningham, as trustee, and others against Charles Springer and others. There was judgment for defendants, and plaintiff's bring error. Affirmed.

This is a suit brought to recover the value of legal services, which it is alleged plaintiff in error Andrieus A. Jones rendered the defendants in error in an action of ejectment brought by the Maxwell Land Grant Company against John B. Dawson in the district court of Colfax county, in which it is alleged Ida May Jones has an interest and Joseph M. Cunningham is her trustee. The complaint contained three counts, but each of them was founded upon the right of plaintiffs in error to recover the reasonable value of the services rendered by plaintiff Jones; the amount claimed being $75,000. The third count, which is evidently the count upon which the trial proceeded-the evidence being applicable directly to this count-omitting the clause relating to the interest of Ida May Jones and Cunningham, trustee, is as follows: “Plaintiffs, for a third and further cause of action, state: That on, to wit, the ___ day of ___, 1891, the said defendant John B. Dawson was the owner and claimant of a large tract of valuable land situated in the county of Colfax and territory of New Mexico, of very great value, to wit, the value of five hundred thousand ($500,000) dollars. That thereafter certain litigation and lawsuits of and concerning said land and the title thereof were commenced against said defendant John B. Dawson by the Maxwell Land Grant Company. That thereafter, on or about the ___ day of ___ 1891, the said defendant John B. Dawson made and entered into an agreement to convey, and thereafter did convey, to the said defendant Charles Springer a one-half interest of all the said valuable lands as aforesaid, in consideration that the said Charles Springer should pay all costs and expenses of carrying on and conducting to a final determination the defense of said claims to said valuable lands set up and made by said Maxwell Land Grant Company. That in pursuance of the said agreement so made and entered into between the said Dawson and the said Springer for the carrying on and defense of said litigations, the said defendant Charles Springer, on behalf of himself and the said John B. Dawson, made and entered into certain agreement with the plaintiff herein, Andrieus A. Jones, as an attorney and counselor at law, whereby the said plaintiff Andrieus A . Jones agreed to conduct and manage for the defendants the said defense of said litigations, and for such services the plaintiff Andrieus A. Jones was to receive a reasonable compensation; and that thereafter, in pursuance of said agreement, the said Andrieus A. Jones, did take charge of, manage, conduct, and control the said defense of said litigation to a successful issue, of which the said defendants had notice, and that the reasonable compensation therefor was and is the one-half of the value of the undivided one-half interest in said valuable lands so set apart for the costs and expenses of conducting said defense. The net value of said one-half plaintiffs allege to be the sum of seventy-five thousand ($75,000) dollars. Plaintiffs state that the said plaintiff herein, Andrieus A. Jones, has duly performed all the conditions of said contract on his part to be performed, but that the defendants and each of them have and has wholly failed to perform their part of said agreement, to the damage of the plaintiffs in the sum of seventy-five thousand ($75,000) dollars, for which plaintiffs pray judgment and the costs of this suit.” To this complaint the defendants filed an answer, the first paragraph of which is a denial of each and every allegation of the complaint, the second paragraph alleges payment before the commencement of the action, and the third paragraph sets up the four-year statute of limitation. The plaintiffs replied to the second and third paragraphs, and upon the issues thus joined a jury trial was had, and a verdict for defendants in error was rendered. Motion for a new trial being overruled, the review is sought in this court upon a writ of error.

It is not error for the court to refuse requests to charge which were substantially covered by the instructions given.

Neill B. Field and E. A. Fiske, for plaintiffs in error.

C. A. Spiess and Catron & Gortner, for defendants in error.

McFIE, J. (after stating the facts).

Before proceeding to the consideration of the assignments of error, it seems advisable to give attention to one contention of the defendants in error which seems to go to the merits of this case. If sustained, it would seem to dispose of the case; but, in any event, it will aid the court in the consideration of the specific errors assigned. It is insisted by the defendants in error that the verdict of the jury was rendered upon conflicting evidence; that it was fairly submitted to the jury by the court in its instructions; and that, where such is the case, this court will not disturb the verdict, nor reverse the judgment based upon it. This court has repeatedly held that, where there is a conflict of evidence-it being the exclusive province of the jury to determine the weight and credibility of the testimony-the verdict will not be disturbed in the appellate court. Badeau v. Baca, 2 N. M. 194; Territory v. Webb, 2 N. M. 147; Waldo v. Beckwith, 1 N. M. 97; Territory v. Maxwell, 2 N. M. 250; Torlina v. Trorlicht, 5 N. M. 148, 21 Pac. 68; Armijo v. Abeytia, 5 N. M. 533, 25 Pac. 777; U. S. v. De Amador, 6 N . M. 173, 27 Pac. 488; Territory v. Hicks, 6 N. M. 596, 30 Pac. 872; Trujillo v. Territory, 7 N. M. 43, 32 Pac. 154, A. T. & S. F. Ry. Co . v. Martin, 7 N. M. 158, 34 Pac. 536; Green v. Browne & Manzanares, 11 N. M. 658, 72 Pac. 17; Robinson v. Palatine Insurance Co., 11 N. M. 162, 66 Pac. 535; Schofield v. Territory, 9 N. M. 526, 56 Pac. 306.

That there was a decided conflict in the evidence is apparent. A synopsis of the evidence of plaintiff Jones and defendant Springer, the persons who entered into the agreement and the only witnesses who testified concerning its terms, as set forth in the brief of counsel for plaintiffs in error, is as follows:

“Jones' account of his employment by Springer may be summarized as follows: ‘*** That on the 10th day of October, 1891, he was engaged in the practice of law at Las Vegas in the territory of New Mexico, and on that day the defendant Charles Springer came to his office and told him that the Maxwell Land Grant Company was going to bring, or had brought, a suit against John B. Dawson for his ranch in Colfax County, and wanted him to represent Mr. Dawson in that litigation. That Jones acquiesced, and thereupon Springer wanted to know what fee would be charged, and Jones said: “I do not know what would be a right fee. I do not know anything about the case or how much work would be required or the value of the property involved” -and said to Springer: “You know more about that than I do. Whatever you think is right will be satisfactory to me.” Thereupon Springer asked Jones if $500 would be about right, and Jones replied: “If you think that's fair, it will be satisfactory to me.” That Jones did not know at that time that Charles Springer had any interest in the controversy, and supposed that Springer was employing him to represent Mr. Dawson, and that Springer was a disinterested friend of both Dawson and himself. That Springer then said: “Well, we will fix the fee at $500 for the case in the district court and in the Supreme Court of the territory”-and Springer thereupon gave Jones a check for $100 on account of his fee . That nothing was said about the case in the Supreme Court of the United States, or about a second trial, or about a second appeal to the Supreme Court of the territory. ***’

“Springer's account of the same transaction is: ‘*** After the suit was brought witness [Springer] visited Las Vegas to employ counsel, and determined to employ A. A. Jones, if he could do so; that he was not personally acquainted with Mr. Jones, and was introduced to him on the day when he first spoke to him about the Dawson Case and told Mr. Jones something of the case; told him that the Maxwell Land Grant Company had brought a suit in ejectment against Mr. Dawson involving the title to his ranch in Colfax county; that he had an interest in the property, and that he had to pay all the expenses of the litigation. That he had come to see if he could employ him; that Jones asked witness if he had employed or if he expected to employ anybody else; the witness told him he had not, and had no intention of doing so; that he told Jones that the case would undoubtedly be bitterly fought by the Maxwell Land Grant Company, and that they had, up to that time, never been defeated in a lawsuit; that the case would undoubtedly go to the Supreme Court of the United States-and asked him what he would charge the witness to conduct the litigation, and Jones answered, “I am willing to leave the matter entirely to you;” that witness then said, “I would like to have settled what your charges will be,” and asked Jones to state what his charges would be, to which Jones replied that he did not care to do that; that the witness said, “how would a fee of $500 do?” to which Jones replied, “That will be perfectly satisfactory,” and the witness said, “That is for the entire litigation?” Mr. Jones after some hesitation said, “Yes; I am satisfied with that;” that witness told Jones that he had considerable other business, some of his own and some that he controlled, which would require the services of an attorney, and that, if he undertook the Dawson Case, witness would give him such business as he had in that line, and get whatever business for him that witness...