DiLlon v. Watson

• Decision Date: 22 October 1902
• Parties: DILLON v. WATSON ET AL.
• Court: Nebraska Supreme Court

3 Neb. [Unof.] 530

92 N.W. 156

DILLON

v.WATSON ET AL.

Supreme Court of Nebraska.

Oct. 22, 1902.

Commissioners' opinion. Department No. 2. Appeal from district court, Otoe county; Jessen, Judge.

“Not to be officially reported.”

Bill by Hannah R. Dillon against John C. Watson and John V. Morgan. Decree for plaintiff, and defendants appeal. Modified.John C. Watson, John V. Morgan, and Robert Ryan, for appellants.

Edwin F. Warren and L. F. Jackson, for appellee.

POUND, C.

This suit involves an accounting between attorneys and client. The trial court allowed a great part of the items charged by the defendants, but rejected several, so that each side has appealed. The items rejected, to which we shall first direct our attention, have been grouped by counsel under four heads: Services in the defense of plaintiff's son in a criminal prosecution; services in a foreclosure proceeding; services in the collection of rents; and services connected with the sale of certain property. The first class of items involves the construction of a written contract between the parties. This contract was made after a preliminary examination had been had, and on the face thereof it is not entirely clear whether compensation for services at that hearing was meant to be included in its terms or not. Ordinarily, the construction of instruments is for the court, but, where a written contract requires extrinsic evidence to explain its terms, the interpretation to be given in view of the circumstances attending execution of the contract and the extrinsic evidence is a question of fact. Coquillard v. Hovey, 23 Neb. 622, 37 N. W. 479, 8 Am. St. Rep. 134;Rosenthal v. Ogden, 50 Neb. 218, 69 N. W. 779;Meyer v. Shamp, 51 Neb. 424, 71 N. W. 57. The trial court found that services at the preliminary examination were included in the agreement, and such finding is not without support in the contract and the circumstances disclosed in evidence. The other items connected with the criminal proceeding relate to expenses in procuring a change of venue. The contract provided that one of the attorneys was to procure such change of venue at his own expense and hence the sums charged were properly disallowed.

The second class of items comprises two charges for sums paid to counsel in a foreclosure suit and certain expenses connected with a transfer of the property in controversy. We are somewhat reluctant to take up these items separately, because review of the record as a whole leads us to suspect that they were rejected more because a somewhat liberal fee had been allowed for legal services in the suit, than because the charges in themselves were improper. But there is an express finding that these items were improperly charged, and we have no course open but to review it upon the evidence relating to them. It appears that the suit had been removed to the federal court, which sat in other counties than that in which the parties resided, and that the defendants on several occasions paid small sums to local counsel, at points where the court was sitting, for attending to formal matters connected with the progress of the litigation. It is no doubt true that a client is not liable for fees of other counsel employed by those whom he has retained to conduct his case to assist therein unless he authorizes or ratifies such employment. Sedgwick v. Bliss, 23 Neb. 617, 37 N. W. 483. But where a case is pending in another county it frequently happens that orders have to be obtained, leave of court taken in matters of course, and calls of docket attended, which do not require personal attention of counsel familiar with the cause, but may be left to one person...